Having a Durable Power of Attorney can Prevent Guardianship…

If you’re seeking guardianship or conservatorship for a relative who is unable to take care of their own personal or financial needs, get ready for the long haul.

Guardianship documents are not easy to obtain and can take months to finalize, warns the article “Possible Guardianship Or Conservatorship in Your Future? Plan Ahead With A Durable Power of Attorney” from Idaho Senior Independent. However, there is a far easier way to plan for the future.

Guardianship is a tool to solve the issue of a person who has become incapacitated and cannot make personal care, legal or financial decisions. With a healthcare surrogate designation and a durable power of attorney for financial matters, you can achieve the same level of control, with far less time, trouble, and cost.

The ultimate goal is to gain the legal authority to make decisions for the incapacitated individual which will be honored by third parties, including financial institutions and health care providers and facilities.

Most estate planning attorneys advise married couples to give each other durable power of attorney (POA) for health care and finances. As long as the couple doesn’t die at the same time or become incapacitated at the same time, the well spouse can manage the couple’s health and assets. It may also be a good idea to name another person as an alternate, usually one of their children.

Having an estate planning attorney create a comprehensive estate plan, which includes powers of attorney, a health care designation document, a trust, a last will and testament, and other necessary legal documents, may seem like a lot to do. However, the alternative, pursuing guardianship, is a costly, intrusive, and lengthy process and only solves one problem. A complete estate plan solves many issues, from care during incapacity to the distribution of assets after death.

Guardianship is needed if there are no health care documents or POA for a loved one and they are unable to care for themselves or make medical decisions. This is especially true if they need some kind of housing assistance, such as assisted living or memory care. A guardianship allows the named person to manage the loved one’s assets, including Social Security, investments, and any property or vehicles they own. The POA also permits you to use their assets to pay for their care.

Achieving guardianship involves filing a petition with the court in the county where your loved one lives. The court requires a different attorney to be retained to represent your loved one to avoid any conflict of interest. An examining committee will be appointed to examine your loved one and make a determination as to his or her ability to care for his or her person and property.

All of this takes time, although an attorney can request that the court grant temporary guardianship if an emergency condition exists.

Having the proper legal documents to manage your loved one’s person and property is a far simpler way for you to care for them if and when they need your assistance. For questions and concerns reach out to Carol L. Grant, Esquire, Davie, Florida estate planning attorney now.

Reference: Idaho Senior Independent (May 1, 2023) “Possible Guardianship Or Conservatorship in Your Future? Plan Ahead With A Durable Power of Attorney”

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