If someone is not able to make his or her own decisions because that person is underaged or because that person is not of sound mind or body, that individual can be declared a ward. A court can appoint a guardian for a ward and that guardian will have a fiduciary duty to act in the ward’s best interest and manage the ward’s affairs.
A guardian might have to be appointed for a child if parents cannot take care of the child. If someone is severely disabled or otherwise temporarily or permanently unable to make decisions or manage his own affairs, the court may also have to appoint a guardian. This usually occurs when a loved one goes to court to demonstrate during guardianship proceedings that the individual is incapacitated and needs a guardian.
Guardianship has some significant downsides, both for the person who needs a guardian and for family members who must become involved in court proceedings during a difficult time in their lives. Zimmer Law Firm can provide assistance during guardianship proceedings to help families ensure that an incapacitated person has a trusted guardian looking out for him. Our firm can also provide help with incapacity planning before an illness or injury causes incapacity, so guardianship can be avoided entirely.
3 Big Downsides to Guardianship
If someone has become sick or hurt and can’t act on his own, it may become necessary to go to court for a guardian to be appointed. Some of the downsides to the court naming a guardian include the following:
- The need for court involvement: Having to go to court can be costly and stressful, especially when you’re forced to initiate guardianship proceedings when your loved one is experiencing a serious medical emergency. The court also remains involved in oversight once a guardian has been named, which can be intrusive.
- The delay in a guardian being named: It can take time for a guardian to be named. During that time, there could be uncertainty over who makes decisions and there could be delays in important decisions being made. Assets could lose value if the assets are not being actively managed, and other problems could arise as a result of this delay.
- The fact that the court selects a guardian: When the court selects a guardian, the appointed guardian may not necessarily be the person who the ward would have preferred be put in charge of making the decisions for the ward.
Zimmer Law Firm can help you to go to court if necessary, and our legal team will try to make this process as stress-free as possible for your family during a difficult time.
Alternatives to Guardianship
Alternatives to guardianship exist if you act before you become incapacitated and need a guardian to make decisions for you. One of your best options is to create a power of attorney and name an agent or attorney in fact.The attorney in fact fulfills the role that a guardian would, except you can specify who should act for you instead of the court just choosing someone. You can outline the limits of the power you want to give to you agent and you can select a person who you have talked with in advance about your wishes.
You can also create advanced directives for healthcare to accept and/or decline specific types of medical services under varying conditions, and can create a living trust to name a trustee to take over the management of trust assets immediately in the event of incapacity.
To find out more about your options for making an incapacity plan so a guardian does not have to be appointed for you in case something happens to you, talk with Zimmer Law Firm as soon as possible.
Getting Help from An Incapacity Planning Lawyer
Zimmer Law Firm can help you to make smart and informed choices about incapacity planning so you will be able to avoid the guardianship process in case something happens to you. Our legal team can help you to make a legally valid incapacity plan that includes the right legal tools necessary to maintain as much control over your situation and as much autonomy as possible, even if you can no longer speak for yourself. We can also assist with guardianship proceedings and advise guardians on fulfilling their obligations to a ward.
To find out more about how to make an incapacity plan so no guardian needs to be appointed if something happens to you, download our estate planning checklist. You can also give us a call at 513.721.1513 for personalized help with your incapacity plan.