Guardianship occurs when a person is not legally able to manage his own affairs. Children, for example, must always have a guardian because they do not have legal authority to manage money, enter into contracts on their own, or make their own decisions. If a parent cannot be a guardian for a child, the court will appoint someone to act as the child’s guardian.
A person who is not a child may also require a guardian if that individual is physically or mentally incapacitated. In situations where someone is made incapacitated by illness or by injury later in life, the court may be forced to appoint a guardian to take over the management of that individual’s assets. However, there are some downsides to this arrangement that could be avoided if an incapacity plan was created while still of sound mind before an incapacitating illness or injury occurs.
The Law Offices of James A. Miller, P.C. can provide assistance in planning ahead in case of incapacity so there is no need for guardianship to occur. Our legal team works with you to ensure you can use the right legal tools to name someone to act on your behalf and to give someone legal authority over you if you become incapacitated. We can also provide assistance in situations where no incapacity plans have been made and guardianship is the only option. Give us a call to find out more about how our legal team can either help plan for incapacity or assist you in responding when a loved one has become incapacitated.
Four Downsides to Guardianship
Guardianship could be the only option in circumstances where a person has been rendered incapacitated due to illness or injury, unless there were plans made in advance. An incapacity plan could consist of a power of attorney that allows you to name an agent to act for you if you become incapacitated. The agent will serve the role that a guardian would serve. Other incapacity planning tools- like advanced directives for healthcare and living wills- can also be used to provide instructions on medical care in case of incapacity, while tools like living trusts can provide additional options for asset protection.
Unfortunately, once incapacity has happened, taking advantage of these tools is no longer an option and guardianship is the only choice. There are downsides to this, including the following:
- Guardianship proceedings must be initiated in court: In order for a guardian to be appointed, court action is required. This can be costly and complicated at a difficult time when illness or injury has resulted in incapacity.
- There may be a delay until a guardian is appointed: Because a guardian must be appointed by the court, there could be a delay until incapacity is officially determined and the court appoints a guardian. During this time, assets could be mismanaged and there could be uncertainty about decisions that need to be made.
- The guardian may not have been the person the incapacitated individual would have chosen: When no power of attorney is created, the court decides who acts on behalf of the incapacitated person, rather than that person choosing for himself.
- The guardian may not be fully equipped to manage assets and make decisions: The court tries to appoint an appropriate guardian and that guardian has a fiduciary duty to act in the best interests of the ward. Still, if the incapacitated person had complicated investments, a guardian may have a difficult time managing those assets as effectively as possible. A guardian without an idea of what the ward would have preferred will also have a more difficult time making decisions than an agent would, had the incapacitated person created a power of attorney and had advanced discussions with the chosen agent.
There could also be other disadvantages as well, depending upon the specifics of your situation.
Getting Help from A Guardianship Lawyer
The Law Offices of James A. Miller, P.C. can help you to create a power of attorney, a living trust, advanced directives and other appropriate legal tools that allow you to maintain as much control as possible if something happens to you. Our legal team can also provide assistance if someone you love has become incapacitated and you need to initiate guardianship proceedings to get legal authority to protect and provide care for your loved one.
To find out how more about incapacity planning works or about what is involved in guardianship, join us for a free seminar. You can also give us a call at 866-370-3888 or contact us online to get personalized advice from a Worcester guardianship lawyer about your situation.
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