Guardianship occurs in situations where a court appoints a guardian to act on behalf of a person who is lacking in capacity to act on his own. Guardianship is overseen by the court. The incapacitated person is a ward, and the person acting on the ward’s behalf is the guardian.
In situations where a person has a physical or mental illness, or is severely injured, guardianship could become necessary unless the incapacitated person has made alternative plans in advance.
It is important to consider pros and cons of guardianship when you are thinking about whether or not you need an incapacity plan. You also need to understand how guardianship works if your loved one is incapacitated by illness or injury.
The Law Office of Michael Robinson, P.C. understands the laws and we can provide help in making an incapacity plan to avoid guardianship. We can also provide assistance if your loved one is incapacitated and you need to become a guardian or have already been appointed a guardian and need help carrying out your duties. Give us a call to find out how we can help.
Pros of Guardianship
When it comes to protecting an incapacitated person and his family, guardianship has some advantages. Some of the pros of guardianship include:
- A guardian can be named after someone is already incapacitated. This is a major benefit because it makes it possible to help someone who became incapacitated without a plan. There must be some mechanism for concerned friends and family to take control, and guardianship (or conservatorship as it is sometimes called) is that method.
- The court will oversee the guardianship process to make sure the guardian acts in the best interests of the ward. This can be a benefit or a detriment. It is good that there is a mechanism in place to ensure that the ward is protected, but continued court involvement can be burdensome.
- The guardian has a fiduciary duty to the ward and must act in the ward’s best interests at all times. This is also true of an agent who is named in a power of attorney if an advanced incapacity plan was made. Still, it is good that a guardian is legally bound to put the needs of the ward first.
In many situation, a guardianship is created to deal with incapacity not necessarily because this is the preferred option but because it is the only option.
If your loved one has been rendered incapacitated by illness or injury, there is no other choice in taking control unless that person made advanced plans. It is too late to go back and use other legal tools, so guardianship is the only choice.
Cons of Guardianship
Guardianship also has some downsides when it comes to dealing with incapacity. Disadvantages of guardianship include:
- The incapacitated person doesn’t get to choose who acts for him. The court appoints a guardian, and it is not necessarily the person who the ward would have decided was the best person to be in charge.
- Guardianship proceedings take time and can be very stressful. Family members of someone who is sick or injured will have to go to court and initiate guardianship proceedings.
- The court involvement can be annoying. The continued court oversight of guardianship can intrude into what you may prefer to keep as private decisions within the family. Having to answer to the court about decisions can also be stressful for a person who is acting as guardian, even if he is trying to do the right thing.
If you want to opt out of guardianship, you will need to act when still of sound mind. You need to make an incapacity plan with help from an experienced attorney. Your plan should address healthcare choices, should name someone to make decisions for you, and should name someone who will be put in charge of managing your assets.
Getting Help from A Rochester Estate Planning Attorney
The Law Office of Michael Robinson, P.C. can provide invaluable assistance with the incapacity planning process. Our legal team will advise you on what will happen if you become incapacitated and will help you to make effective use of legal tools to care for your family and maintain control as much as possible.
To find out more about what is involved in incapacity planning, give us a call at (585) 546-1734 or contact us online today. You can also join us for a free workshop to find out how incapacity planning can be a part of your plans for the future.