When a person becomes incapacitated mentally or physically and needs legal protection, many families do not have a clearly-defined set of instructions from that loved one on what to do next. As a result, they rely on the court system to have a guardian appointed. And while the goal of any guardianship case is to appoint someone (a family member or someone else) who can make decisions regarding health, safety, finances, etc., it is usually a burdensome and emotional process for the family.

You may wonder, “Is there anything I can do ahead of time to plan for such situations and, perhaps, avoid the guardianship process altogether?” We are so glad you asked that question! 

And the quick answer is a resounding yes!

First things first: What is guardianship? 

Guardianship is a legal proceeding whereby a court appoints someone (guardian) to be responsible for exercising all the legal rights of an incapacitated person (ward). Guardianship can be sought for the person, their estate, or both, and in many cases, it is unavoidable. This includes when an individual loses capacity before signing necessary documents or is highly susceptible to financial or personal exploitation. Examples of financial or personal exploitation include:

  1. Being isolated from caring family 
  2. A supposed “guardian” diverting funds for improper use
  3. Not receiving necessary care and medical attention

A perfect example of this happened years ago with actress Reese Witherspoon. She and her family had to go to court to have a guardian appointed for her father, Dr. John Witherspoon. Family members claimed he was suffering from dementia and being taken advantage of by a woman he allegedly married while still being married to Witherspoon’s mother. As the Witherspoon family discovered, the guardianship process can be an expensive and emotionally trying time for family, as proceedings are a matter of public record and are not kept private. While going to court to appoint a guardian may become necessary to protect someone’s assets or health — as it was in the Witherspoon case — it can be one of the most unpleasant legal procedures.

Careful estate planning is important!

The guardianship process can be difficult for many families and can be avoided with careful estate planning. Here is how:

  1. Healthcare Power of Attorney — This legal document lets you name someone to act on your behalf in case you become incapacitated in the future and cannot make your own healthcare decisions. 
  2. Financial Power of Attorney — You can appoint an agent to make financial decisions. Financial POAs can either be durable, meaning that it goes into effect as soon as the document is executed, or springing, meaning that it only goes into effect if and when you have been declared mentally incompetent by a court or one or more doctors.
  3. Revocable Living Trust — One of the most efficient ways to avoid guardianship is by establishing a revocable living trust, funding it with your assets, and naming someone as a disability trustee. You control the trust as long as you are competent. If you become incapacitated, the disability trustee can take over and manage your assets for your benefit.

Again, even when guardianship is a necessity, it must be treated with the seriousness and respect it deserves. If you would like to avoid guardianship, there are preventative steps that can be taken by a person before they become disabled. Your estate planning attorney can assist with creating the necessary documents, answer any questions you may have, act as a resource for other valuable information, etc.

Call Leigh Hilton PLLC today!!

Do you have questions about guardianship and whether or not it is right for you or a loved one? Having a competent estate planner in your corner will help you and your family navigate the often overwhelming waters that come with protecting everything you own and everyone you love. That is our job, and we would like to think we do it better than anyone else. Please call Leigh Hilton PLLC so that we can help ensure you and your family are taken care of in the best way possible. 

Leigh Hilton PLLC wants to be your first call every time for any estate planning need. We look forward to serving you.

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