How to Use Estate and Incapacity Planning to Avoid Guardianship

When a person becomes incapacitated and needs to appoint a legal representative, it is too late to create documents such as Trusts, Wills, Durable Power of Attorney, and Advance Healthcare Directives. So how does the incapacitated person’s family help manage their affairs?  The answer is through the Guardianship process.  Guardianship is a legal proceeding where a Judge appoints someone (the “guardian”) to be responsible for exercising the legal rights of an incapacitated individual (the “ward”). Guardianship can be a lengthy and expensive process; however, it can be avoided by hiring an experienced attorney to draft an estate and incapacity plan before an individual becomes incapacitated. 

With a Court Order, a guardian has the legal authority to make decisions on behalf of the ward, regarding important aspects of their life, such as their medical care, living arrangements, and expenditure of their funds, all under Court supervision. Guardianship is the last resort for incapacitated individuals that did not create a well-drafted estate and incapacity plan. If an individual is deemed incapacitated by a Court, the court will appoint a guardian for them, which can be a stranger if there is no suitable family member to assume the responsibility, or if there are substantial disagreements among family members. The guardian has a fiduciary duty to the ward and may only exercise rights and duties delegated to them by the court.

A thorough estate and incapacity plan helps avoid guardianship and allows a person to control who manages the important aspects of their life now and in the future. The following legal documents should be included in an estate and incapacity plan:

Durable Power of Attorney: A Durable Power of Attorney is a legal document that grants an appointed agent, known as the “attorney-in-fact” the authority to act on behalf of someone else, known as the “principal.” This legal tool allows a trusted individual to manage one’s legal and financial affairs as they age, with the ability to act immediately to begin assisting with important life decisions, even if the principal is not yet incapacitated. A Durable Power of Attorney is effective in avoiding guardianship, as the agent is still allowed to act on the principal’s behalf if the principal becomes incapacitated.

Advance Healthcare Directive: An Advance Healthcare Directive, sometimes referred to as a Healthcare Surrogate Designation, allows an individual to appoint a trusted agent (called the “health care surrogate”) to make decisions regarding their healthcare and medical treatment, if a situation arises where they are no longer able to do so, or simply need help making a decision.

Revocable Living Trust: By establishing a Revocable Living Trust, a “Grantor” (the creator of the Trust) maintains control over the assets titled in their Trust as Trustee and can name a backup to themselves as a Successor Trustee. If Grantor becomes incapacitated and when the Grantor dies, the Successor Trustee can take over as Trustee to manage the assets, without court intervention.

Without a proper estate plan, family members may be left to petition the court to handle your affairs. But at COHEN SAMUELS PLLC, our experienced attorneys can assist in drafting your estate, to protect your wishes and assets. Call our firm at (561) 600-1250.