Guardianships – also known as conservatorships – are drastic and invasive. They strip away control adults otherwise exercise over their own lives and establish someone else as the decision-maker. They require a rigorous showing of legal incapacity and approval by a judge. In many jurisdictions, parties must establish a specific need for guardianship and demonstrate that other alternatives considered would not adequately protect the individual.
Kiplinger’s recent article entitled “Guardianships Should Be a Last Resort – Consider These Less Draconian Options First” says that guardianships should never be undertaken lightly. Once established, they can be extremely difficult to undo. Therefore, other options should always be considered first.
Guardianships ensure that those who are unable to handle their own affairs aren’t exploited or injured. There are circumstances when a guardianship may be the best – or only – choice. For example, an elderly gentleman with dementia may have lacked the planning to make adequate provisions in his will or trust for management of his affairs. Without a plan for oversight of his assets, he could end up jeopardizing the estate he intended to pass on to his family. In that case, the heirs may look to have a court-appointed guardian appointed who will ensure that their father or grandfather doesn’t sign away his estate or compromise his physical well-being.
Transparency is important. Before it becomes necessary for a guardian to be appointed to handle your physical or financial decisions, consider whom you’d trust to act in that capacity and put it in writing. It also informs others that, if a guardian is needed, this person is the one you’d like to see serve in that capacity.
A directive will make your wishes clear and keep this important decision from a judge who will know nothing about you or your priorities or your specific circumstances. In addition, you should delegate a second person now to support you in the future. It’s preferable that this is someone younger whom you trust. This individual will bring a fresh perspective to the situation. They should also possess a sound understanding of money management.
If you don’t consider these things now, the state will make the decision for you after you no longer can make such decisions for yourself.
Talk with an experienced elder law attorney and create the documents now that will save your loved ones from having to seek guardianship for you in the future.
Reference: Kiplinger (July 7, 2022) “Guardianships Should Be a Last Resort – Consider These Less Draconian Options First”
