3 Things You Need to Know About Incapacitation and Guardianship
By: Mark Eghrari
Elder Law Associates Newsletter dated December 27, 2017
It's not fun to think about, but as we grow older we all face the possibility of becoming mentally or physically incapacitated for a period of time – possibly even for many years. (I warned you it wouldn't be fun to think about.) While you may not be able to avoid that happening to you, you can make sure your medical and financial decisions are carried out if you can’t speak or act for yourself.
Why is that important? If you do become incapacitated, someone will have to act for you. If you don’t put your wishes in writing, family members or close friends may file court proceedings to obtain legal authority to manage your affairs. In effect they become what are known as guardians, conservators, or surrogates. (For simplicity’s sake, we’ll use the term “guardian.”)
If a guardian is court-appointed, you lose the right to make even basic decisions about your property and in some cases your healthcare. Court proceedings to establish guardianship can be time-consuming, are open to the public, and can sometimes be awkward and embarrassing. Preparing the right documents can help you avoid guardianship; they’re a form of “insurance” that only takes effect if you need it.
Here are three things you need to know about guardianship – and how to avoid it.
1. You can avoid guardianship with a Power Of Attorney (POA) and healthcare directives. By creating a Durable Power of Attorney, you give a person you choose the right to carry out your financial decisions. Healthcare directives preventing “extraordinary” care or unwanted medical treatment ensure your wishes are carried out, sparing family members from making difficult medical decisions.
2. Guardianship is established through court proceedings. While procedures vary from state to state, there are common elements:
- A petition is filed describing the need
- Examinations by doctors or mental health professionals may be required
- Notices of the proceedings are posted
- An open hearing will eventually be held.
The cost of court proceedings typically runs in the thousands of dollars.
3. If you are appointed as a guardian, the court order will limit the scope of your decisions.
You may have one or two powers, or you may have almost total authority to make financial, property, and lifestyle decisions (especially if your ward is a minor). A guardian’s goal is to make decisions that are in the best interest of the ward while you staying within court-established boundaries and guidelines.