GUARDIANSHIPS AND HOW TO AVOID THEM

A guardianship is a court proceeding during which a judge will declare an individual incapacitated and name a guardian to manage that individual’s financial and medical decisions.  A court must review two doctors’ reports that conclude that the individual is unable to manage her own financial and medical decisions before declaring that individual as incapacitated.  The court must also appoint an attorney for the alleged incapacitated person to investigate and protect the rights of the incapacitated individual.

A guardianship can be an expensive and time-consuming process which requires the assistance of two doctors and usually two attorneys, one to file the appropriate court documents and the court-appointed attorney for the alleged incapacitated individual.  Even uncontested guardianships generally take about 3 months to file and be decided by the court. For those guardianship cases that involve multiple family members seeking to become guardian, the case may drag on for years and cost the family tens of thousands of dollars.

The good news is that a guardianship, in most cases, can be avoided by simply planning for the possibility of incapacity.  How does one plan for the possibility of incapacity?  By having a Durable Financial Power of Attorney and Advance Medical Directive.  I strongly recommend that everyone have those 3 documents along with a Will.  The Durable Financial Power of Attorney and an Advance Medical Directive appoints agents to manage an individual’s finances and medical decisions, if necessary.  If those documents are properly drafted, a guardianship should not be necessary.

 It should be noted that spouses do not have an automatic right to access accounts in the other spouse’s name.  I have met with numerous married couples who are surprised to learn that they cannot access their incapacitated spouse’s accounts without a Durable Power of Attorney or Guardianship appointment. Whether you are married or not, Durable Powers of Attorney and Advance Medical Directives are very important documents that should avoid the expensive and public process of a Guardianship.

What are you waiting for?