A guardian is a person who is appointed by a court to handle the affairs of someone who is incapable of handling his or her own business. When a child is left without a parent or legal guardian, a guardianship proceeding could be convened.
This is the scenario that may come to mind when you hear the term, but a significant percentage of adults become unable to make sound decisions at some point in time due to incapacity. Under these circumstances, interested parties could petition the court to appoint a guardian to act on behalf of an incapacitated adult.
Adult guardianship could provide a solution to a difficult situation. When an adult can no longer make sound decisions, someone must step in to act, and the state must empower a representative so that the person has the legal right to act on behalf of the ward.
Though this is a positive safeguard, there are some disadvantages that could come into play. The guardianship proceeding can be time consuming, there is a lot of paperwork involved, and there will be expenses.
Plus, though the court will hear opinions, the person in question would no longer have the direct power to choose his or her own representative.
Lastly, the family members may not all be on the same page with regard to the best way to proceed. This can create acrimonious interactions during a time when family members should ideally be supporting one another.
Proactive Incapacity Planning
It is possible to be proactive about the implementation of an incapacity plan. If you take the right steps, you can make sure that representatives of your own choosing would be empowered to act on your behalf if you were to become incapacitated at some point in time.
When it comes to financial decision-making, there are a couple of different ways to proceed. A revocable living trust can be a very effective vehicle of asset transfer. If you were to use a revocable living trust as an estate planning tool, you could empower the successor trustee to administer the trust in the event of your incapacitation.
If you use a last will to state your final wishes and you don’t have a trust, you could create a durable financial power of attorney. The agent that you name in the document would be able to act on your behalf in a legally binding manner if you were to become unable to make sound financial decisions on your own.
You could also execute a durable power of attorney for health care to name a health care decision maker.
When you create an incapacity plan in advance, your own hand-picked decision-makers would be in place to act on your behalf, and there would be no need for a guardianship.
Incapacity Planning Consultation
If you would like to put an incapacity plan in place, send us a message through our contact page to schedule a free consultation: Grand Forks ND Incapacity Planning Attorneys.