Guardianships Part 1: How to Avoid Court-Appointed Guardianships

Elder Law, Videos

It is a common thought that adults are fully capable of making their own decisions for their life and taking care of themselves, and that’s usually the case; however, a court, under several prerequisites, can decide differently. When it is legally determined that an adult is incapable of making sound and safe decisions, the court will appoint a guardian to care for the incapacitated adult and make choices for their life as they see fit.

Depending on which way you look at court-appointed guardianship, this process can seem like a nightmare or like a godsend, and much of that outlook is determined by how one comes to be under the guidance and care of a court-appointed guardian. Let’s discuss a few components to court-appointed guardianship.

How does this process begin?

The start of the court-appointed guardianship process occurs when someone, usually a close family member, contacts an attorney to begin taking steps to properly care for an adult who is not capable of doing so on their own; but, it doesn’t necessarily have to be a close family member who gets the ball rolling. Anyone who is concerned for the ward in question can begin proceedings to have the court appoint a guardian.

Guardianship appointed by the court is dependent upon the assessment and expertise of two physicians who have examined the person in question and have written a report indicating that this person is incapacitated and unable to make decisions for their life or portions of their life. by getting two doctor’s exams and a written report from the physicians who conclude that the person is incapacitated.

An individual is deemed incapacitated when two physicians have examined the person and conclude that they are unable to manage their affairs and therefore are incapacitated under law. At the hearing to discuss these reports and findings, the court will determine to what extent the person in question is incapacitated, if at all, which leads to the appointment of a guardian. Depending on the circumstance and need of the individual, the guardian could be someone close to the ward or a complete stranger that has the knowledge and ability needed to oversee another’s care.

How do I avoid court-appointed guardianship?

There are limitless issues that can be avoided by properly and proactively planning, and that’s certainly true with avoiding guardianship. By planning for the future with a durable financial power of attorney and a medical directive, you can avoid guardianships in almost every case. Acting proactively when you are of sound mind and capable of completing the required documents to affirm your future is key, and it’s your best shot at avoiding the costly, time-consuming, and sometimes painful court proceedings of appointing a guardian.

We can’t stress enough the importance of thinking ahead and planning for the future. Failure to do so could mean that family members are not appointed as guardian, as an independent party can be appointed. This is especially worrisome when you consider your own wishes for your financial decisions and medical care and understand that those might not align with the person the court appoints for your care.

If you’re concerned about protecting your loved ones through a guardianship process or with the other documents discussed here, please contact our office, so we may help protect your family and their future. Emotions can run high when considering all that is at stake with a court-appointed guardianship. We would be more than happy to meet with you and discuss the details, facts, and options in cases like these.



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