Guardianship

Guardianship provides for an elder who can no longer take care of themself

Guardianship is a legal term used to denote a person who is taking care of the personal concerns of an individual in the event that they become incapacitated.  A guardian may be appointed by the individual while they have capacity in the form of a legal document often called a Healthcare Proxy or Healthcare Power of Attorney.  Secondly, the individual may give an institution, such as a bank trust department or an attorney, the authority to handle personal and financial matters upon their incapacity.  Thirdly, if no one has been appointed, the court will appoint a guardian.  Each state has different rules about how guardianship is handled.  Guardians are required to account for every penny spent on behalf of the individual to the courts annually.

Criteria for Determining Competency

How do you determine that someone is incapacitated?  It cannot be just hearsay.  A person must be deemed to be incapacitated by one or two physicians who have treated the individual and are willing to testify to the courts.  Incapacity arises when the person becomes a threat to themselves or to someone else.  They may become susceptible to undue influence or fraud.  Some individuals are no longer able to write checks or handle their own affairs or have a mental incapacity.

When a guardian is appointed, that person becomes the ‘Attorney in Fact’ for the incapacitated individual.  There are two types of Power of Attorneys:  A Healthcare Power of Attorney handles everything to do with the person’s care including medical care; placing the person in a facility; authorizing treatment; purchasing clothing and more.  A Conservator handles the financial affairs of the ward.  The guardianship terminates when the individual passes.  At that point, the Executor of the Will takes over authority.

End of Life Planning avoids attorney and court fees and more…

It can be very complicated when a person becomes incapacitated without anyone designated to take over for them.  Going through the courts takes time and money…money that could have gone to the individual’s care.  Contact an Elder Estate attorney when deciding on End of Life issues.  It is a very complex area of law and requires someone who has been specifically trained to handle End of Life legal issues.  To find an Elder Estate Attorney in your area, go to http://www.naela.org, the National Academy of Elder Law Attorneys, and input your zip code.  A list of attorneys in your area will be displayed.  The Attorney General’s office in your state may also have documents to assist you in understanding the process.

Identify someone who can direct your care as you age

While you are in good condition, make sure your legal documents are in order.  Tell someone their location.  If you do not have children, cultivate a relationship with someone you trust.  Keep in mind that when you get older, they may not be available or in condition to do it if they are your age.  If you have no one, then investigate the Trust departments of a bank you trust or an attorney with whom you have worked.

End of Life Planning should begin in your 40’s because people typically are at the height of their careers; have children or parents they are taking care of and have accumulated some assets.  Power of Attorney for Healthcare should be completed when anyone turns 18 years of age.  Don’t delay this process because it could affect your treatment options; your family’s welfare and how your assets get distributed.  It could also cost your estate much more in attorney and court expense.

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