There are multiple tools available to help manage a person’s affairs in case of incapacity. Once a person becomes incapacitated, however, guardianship may be the option of last resort. Unfortunately, there are many reasons why people may want to avoid guardianship altogether.
First and foremost, if guardianship is necessary, then the person in need of protection is likely already incapacitated and in need of protection now. Obtaining a full guardianship is a lengthy and costly procedure. Evidence proving the incapacity has to be compiled, that evidence has to be filed with the local probate court, a hearing date has to be obtained, and then a guardianship hearing can take place where a guardian may be named.
Another potential drawback is that the court, not the incapacitated individual, gets to decide who the guardian will be. While the court may look for evidence of who incapacitated person may have wanted as a guardian, there is no guarantee that the court will respect those wishes.
Even after a guardian has been named, the work and cost involved in a guardianship continues. Essentially, the court continues to supervise the guardianship until the guardianship ends. This involvement requires the regular filing of reports and accountings of the incapacitated individual’s current condition and their financial assets which are reviewed by court officials.
Guardianships are a matter of public record. Both the identity of the person being protected and the name of the guardian are publicly available. Additional guardianship documents may be available for viewing depending on the state and local rules where the guardianship was filed.
Fortunately, guardianship can generally be avoided before an incapacity takes place. One starting point is to work with an experienced elder law attorney to create powers of attorney for health care and/or financial decisions. An experienced elder law attorney can help create a full estate plan to help protect an individual and their assets. Even after a diagnosis of early stage Alzheimer’s disease, or similar conditions, individuals may still have the capacity to create planning documents. However, the sooner planning with an elder law attorney begins, the more likely it is that a fully developed plan will be in place if it becomes needed.
To begin planning for a potential incapacity that avoids the need for guardianship proceedings, please call Martha C. Brown & Associates at (314) 962-0186.
