A guardianship can be avoided with proper planning.
When it comes to estate planning, guardianship can have two different definitions.
One type of guardianship is for minor children.
Parents designate guardians for their minor children to avoid their entrance into the foster care system or to protect against the court choosing their legal guardian.
These guardianship designations are advisable in estate planning.
The other type is typically avoided through estate planning.
The second type of guardianship is when a family must petition the court to have someone designated as a guardian or conservator to make legal and financial decisions on behalf of an incapacitated adult.
According to a recent American College of Trust and Estate Counsel (ACTEC) video titled "Alternatives to Guardianship," estate planning strategies and tools are available to avoid this fate.
Powers of attorney are vital, providing individuals greater control over who will have legal authority should they become incapacitated.
A guardianship may lead to a guardian or conservator making decisions in contravention of our wishes.
While estate planning is essential at any age, the probability of using these documents increases as one ages.
Estate planning does not only address the transfer of assets after death.
Instead, it also includes preparations for incapacity and cognitive decline.
Incapacity planning protects against financial risks associated with unauthorized withdrawals or misuse of assets and healthcare decisions made by those who do not have your best interest in mind.
A guardianship gives legal authority to an individual appointed by the court.
This court-appointed guardian then acts and makes decisions on behalf of a person who is mentally or physically incapable of doing so.
The scope of a guardian is broad and includes property, health, and medical care.
For guardianship to be granted, the individuals must be evaluated and deemed incapacitated by a professional.
Guardians are required to keep detailed records of personal care decisions, handling of financial affairs, and the overseeing of living arrangements.
They must also frequently check in with the court.
Unfortunately, the decision to appoint a guardian is often made without consideration for alternative actions.
As a result, the individual who is deemed incapacitated can quickly lose all authority over where they live, what they eat, and whether they will receive medical care.
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Guardianships can be expensive and also emotionally devastating to families.
Powers of attorney are legal documents granting authority to an agent to act on your behalf.
While there are different powers of attorney to protect medical and financial wishes, durable powers of attorney are only effective once you are deemed incapacitated.
Financial powers of attorney allow you to name someone who governs your financial management of bank accounts, bill payments, retirement accounts, investments, and real estate.
With medical powers of attorney, an agent is named to make medical decisions based on your wishes outlined in the document.
The risks associated with unexpected medical needs and financial vulnerabilities increase with age.
While guardianship is designed to care for someone deemed incapacitated, it also can lead to a complete loss of autonomy when the court appoints the guardian.
Powers of Attorney allow individuals greater control over their assets, protection, and wishes.
If you live in Overland Park, Kansas, or the surrounding areas, contact Harvest Law KC to request an initial consultation to create a plan to prepare for incapacity and avoid guardianship.
This post is for informational purposes only and does not provide legal advice. You should contact an attorney for advice concerning any particular issue or problem. Nothing herein creates an attorney-client relationship between Harvest Law KC and the reader.
Reference: The American College of Trust and Estate Counsel (ACTEC) (May 13, 2021) "Alternatives to Guardianship"
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