Guardianship: The Good, the Bad, & the Ugly
Things like wills and trusts are naturally going to come to mind when you think about estate planning. Transferring assets is certainly part of the process, but you should also think about the latter portion of your life and the potential for guardianship proceedings.
Incapacity Is Common
If you walk up to the proverbial man on the street and ask him if he thinks that he will live into his 80s, he would probably say that it is quite possible. On the other hand, if you asked the same person if he’s ever going to be incapacitated, he would probably say that it is unlikely.
In fact, a very high percentage of people who have reached their 80s do become unable to make sound decisions on their own.
Alzheimer’s disease strikes around 45 percent of people who are at least 85. It afflicts approximately 13 percent of all senior citizens. Alzheimer’s induced dementia can certainly make it impossible for you to make sound decisions for yourself. Under these circumstances, a guardianship proceeding could be convened.
The state would hear the evidence, and a guardian would be appointed to manage your affairs if the court decides that you are in fact incapacitated.
This can be a good thing. You may genuinely need help, and the court would empower someone to act on your behalf to ensure your well-being.
It’s great to have a decision-maker in place if you need one. However, during a guardianship hearing the state may wind up appointing someone that you never would have chosen on your own. This possibility would be quite disconcerting to many people.
Everyone in the family is not necessarily going to be on the same page. Some of your loved ones may feel as though you need a guardian, and others may disagree. Even if they all agree that a guardianship is necessary, there can be infighting with regard to whom the guardian should be.
Things can get heated at a time when family members should be pulling together to support one another.
Durable Power of Attorney
You can prepare for the possibility of incapacity on your own by executing a legally binding device called a durable power of attorney. With this document you name someone to handle your affairs in the event of your incapacitation.
Because the power of attorney is designated as durable, it remains in effect even if you do become incapacitated.
When you have a durable power of attorney in place, there is no need for a guardianship hearing. The powers that be will recognize the legally binding nature of the device, and your own hand-picked attorney-in-fact will be able to act on your behalf in the event of your incapacitation.