Guardianships

A guardianship is a Court process, often initiated by a family member, that involves obtaining a determination by a Judge that an individual has, due to an accident or serious medical condition, become incapable of handling his or her own personal, medical and financial affairs, and therefore requires the appointment of a guardian to handle those matters.

Obtaining appointment of a legal guardian of the "person" and/or of the "estate" is an involved legal process that requires time (often months), money (often thousands of dollars) and the participation of several professionals, as well as a judge. The judge is required by law to appoint an investigator called a "guardian ad litem" to investigate, among other things, whether or not the "alleged incapacitated person" is truly incapable of handling his or her own affairs and whether or not the person desiring to be appointed guardian is a suitable choice to be appointed.  Once appointed, the guardian must file periodic reports with the Court, keeping the Court informed about the incapacitated person's condition and financial matters and keeping the Court informed about the guardian's activities. That reporting that must continue until the guardianship is terminated (usually when the incapacitated person dies) and the duty to prepare and file those reports can be burdensome and costly.

Guardianship actions are typically avoided when individuals take action on their own behalf, well in advance of ever becoming incapacitated due to a serious accident or illness.  When children born with severe disabilities who will likely never become capable of handling their own affairs reach adulthood, guardianships are often unavoidable. 

By executing a Durable Power of Attorney with good health care provisions and very thorough financial provisions, a competent adult can appoint a trusted "agent" (and alternates) to act on the the person's behalf in the future when the individual becomes incapacitated. No determination by a judge of the person's competency is required when a thorough Durable Power of Attorney is in place. The time, expense and heartache of going through the guardianship process is avoided entirely.

Don't, however, rely on Durable Power of Attorney forms downloaded from the Internet "legal in every state, prepared by real attorneys", or obtained from the hospital or doctor's office or copied from a friend's legal papers. If the Durable Power of Attorney does not contain the necessary provisions to satisfy the person or the legal department of financial institution your agent might be dealing with on your behalf, your agent may need to pursue the guardianship that you had hoped to avoid.