3rd Step In Elder Law Process – Do I Have to Have a Guardianship?
When a loved one reaches a point where he/she is no longer competent to make decisions or manage finances, someone else must step up and start making those decisions and managing the estate. Unfortunately, it isn’t quite that simple. In order to make medical or personal decisions for another person, you must first have the requisite legal authority to do so. The same is true for seizing control of the estate.
Petitioning for guardianship is one option; however, it may not always be necessary.
Facing the Incapacity of a Loved One
Watching the mental deterioration of a spouse or parent is heart-wrenching. Whether as a result of Alzheimer’s disease, a tragic accident, or the natural aging process, it can be extremely difficult to watch a once vibrant and capable loved one morph into the equivalent of a young child. Whether the change occurs rapidly or gradually, the end result is that your spouse or parent has lost the ability to make important decisions and the capability to manage his/her estate.
Your loved one may not want to admit and acknowledge what is happening, making things even more difficult for you. Just as your spouse/parent may not want to give up the ability to make decisions and manage finances, you may not want to take those rights away. Failing to do so, or waiting too long to step in, however, could have dire consequences. Once you have reached the conclusion that it is time to intervene, the focus becomes how best to do so.
Is Guardianship the Only Solution?
Adult guardianship is a legal arrangement, ordered by a court, whereby one person is granted authority to make decisions and/or manage the affairs of another person (the “ward”) who has been legally adjudicated to be incapacitated or disabled. State laws govern guardianship procedures, also called “conservatorship” in some states. Typically, there are two primary types of guardianships, including:
- Guardian of the person – a guardian of the person has the authority to make personal decisions for the ward, such as where the ward will live, what doctor the ward shall treat with, and whether the ward can drive.
- Guardian of the estate – a guardian of the estate manages the financial affairs of the ward and might have the authority to receive and manage income of the ward, sell estate assets, or enter into contracts in the ward’s name.
You could be named guardian of the person, guardian of the estate, or both. In addition, the court may limit the authority of either type of guardian if the full powers of a guardian are not needed. The court can also limit the duration of a guardianship to a specific period of time or create an indefinite guardianship. An emergency guardianship can also be granted when a judge is convinced that one is warranted.
Because guardianship is considered to be the most restrictive option, the court will always consider less-restrictive alternatives first or contemplate a limited guardianship instead of a full guardianship whenever possible.
Drawbacks to Guardianship
When a loved one is incapacitated, being appointed guardian provides you with all the authority you need to make decisions and manage the estate indefinitely if necessary. There are, however, some drawbacks to guardianship, the most notable of those being the time and expense needed to petition for guardianship. In addition, the court will retain jurisdiction over the guardianship once it is approved, meaning you will need to report to the court on a regular basis and may be required to seek court approval for decisions you make as guardian.
The Need to Plan Ahead
There are alternatives to a guardianship that may provide you with the authority necessary to make decisions and/or manage the estate of your loved one. The most important thing to understand about these alternatives is that they require forethought. Once your spouse or parent reaches the point of incapacity, the legal ability to consent, which is necessary to execute any of the following documents, has been lost. In other words, if you wait until your spouse has been diagnosed with Alzheimer’s and is clearly showing symptoms to decide to execute a power of attorney, it will be too late.
Alternatives to Guardianship
Petitioning for guardianship over your spouse or parent can be a time consuming and costly process. By planning ahead, you may be able to avoid the need for a guardianship altogether by executing one or more of the following documents:
- Health Care Power of Attorney – this is a type of advanced directive that allows you to appoint someone to make healthcare decisions for you if you are unable to make them yourself at some point in the future because you are incapacitated.
- Durable Power of Attorney – a power of attorney allows you to appoint an “Agent” to act on your behalf in legal matters. The authority granted in a power of attorney can be very broad or very limited. When a power of attorney is durable it means that the power granted to the Agent survives the incapacity of the Principal (you). With power of attorney, your designated Agent should be able to manage your financial affairs.
Drawbacks to Using a Power of Attorney
While a power of attorney is a much simpler alternative to guardianship, there are some drawbacks to relying on a power of attorney. One of the biggest of those is that third parties, such as healthcare and financial institutions, frequently refuse to honor a power of attorney unless it includes specific language or was created using their own form. You may run into similar problems if you try to use a Health Care Power of Attorney in one state that was executed in another state. Another potential problem with using either type of power of attorney occurs when the designated Agent is unable or unwilling to serve. Imagine, for example, that your spouse appoints you as his/her Agent but you yourself became extremely ill and could not fulfill your duties as Agent for some period of time. Because there is no judicial oversight to a power of attorney, there is consequently no ready solution. In fact, the only option, in that case, would be for someone else to petition the court for guardianship.
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