Legal Strategies to Avoid Guardianship

As senior citizens continue to age, the likelihood increases that they will become physically or mentally incapacitated. Hopefully, people in such a situation have family members who step in and help keep their affairs in order. That is not always the case, however. If no one steps in to help, courts may be petitioned to appoint someone–a guardian–to look after that person’s very existence. This often happens  when a person becomes incapacitated by illness and cannot make decisions.

 What Can I Do?

For medical situations, a medical power of attorney – a document that identifies a person of your choosing (your agent) to make decisions for you in the event of your incapacity – should be executed. Your agent can be family member or friend. The key is to make sure it is someone you trust.

A power of attorney can also be used to appoint someone to deal with non-medical issues. This document can be set up to either take effect immediately or only at such time as you are unable to make your own decisions. The former is known as a “durable” power of attorney, while the latter is a “springing” power of attorney. The durable power of attorney is the more effective of the two in that it requires no consideration of whether a person lacks the capacity to make decisions.

Also, consider setting up a trust to administer your assets as you age. Unlike a power of attorney, with a trust, the trustee has sole control of your assets. And there are further legal steps you can take, such as establishing a limited liability corporation or a family limited partnership to manage your assets.

All of these processes will prevent the need for a court to appoint a guardian for you if you become incapable of managing your own affairs. Those of us who are in our senior years should

recognize the increasing chance of the need for someone else to make decisions. And those of us who have elderly parents or loved ones should help them think about these issues. The time to plan for potential incapacity is now. Once someone becomes incapacitated, it’s simply too late.

This article is a service of Gratia P. Schoemakers, Personal Family Lawyer®.  One of the main objectives of our law practice is to keep families out of court and out of conflict through thoughtful estate planning. That’s why we offer a Family Wealth Planning Session,™ where we help you be proactive in avoiding guardianship and appointing people you trust to take care of you and your affairs if you later become unable to do so.  Call our office today to schedule a time for us to sit down and identify the best strategies for you and your family.