How Do You Know When You Need a Guardianship?


Jordan: Hi, my name is Jordan Flake. I'm an attorney with Clear Counsel Law Group. Our law firm practices estate planning, probate. We also practice guardianship. One of the questions we get is: Under what circumstances do I need a guardianship? When can a guardianship be granted? When we're talking about guardianship, really that arises in two contexts: either guardianship of a minor or guardianship of an adult.

Guardianship of a minor oftentimes can be like a family law issue. Most of the time when we're talking about guardianship of a minor we're not talking about physical disabilities or incapacities, although that can be the case. We're talking about the fact that they need a guardianship because they're too young. Most of our practice focuses on this other scenario, adult guardianship, where the issue is, hey, we have this elderly individual who doesn't have the ability to care for themselves. How do we know who should make decisions on their behalf?

The answer to that question is first we try to find out whether or not they have estate planning documents, because normally if you have a full and robust estate plan, you will never have to worry about guardianship because you will have previously designated who will take care of you in the event of your incapacity. If you don't have an estate plan, then we need to make a decision for that elderly person, for that incapacitated individual. We need to essentially say we've got to go down and get somebody appointed to basically have full authority to say what medical treatment they receive. How do we use their finances for their benefit?

Really the first relevant question is capacity. Are they able to make decisions on their own? The guardianship court requires us to show a medical opinion regarding capacity before granting any type of guardianship. If we go and we say Ms. Jones is 82 years old, she can't take care of herself, she doesn't at this time in her life have her mental capacity, the court's not just going to take our word for it. They're going to require us to provide a doctor's note saying that Ms. Jones can't take care of herself. Those are some of the prerequisites and considerations when we're thinking about guardianship. Guardianship can be helpful or even necessary if you have an elderly person who needs care but we don't have a way to access their property or we don't have a way to establish who has the right to make decisions on their behalf. Bryan, does that cover it there or did you have other follow-up questions about guardianship?


Brian: You covered it very well. A couple follow-up questions. If a person is worried about her own capacity, can she acquire the guardian on her own?


Jordan: You can actually consent to a guardianship. If you want to say, "Listen, I have some concerns about my own capacity, and at this point maybe a power of attorney document or the right estate planning documents wouldn't be held valid if I were to execute them because I have some concerns about my own capacity," in that scenario you can consent to a guardianship and say, "Listen, I'm concerned. Therefore, I want to appoint Brian to be my guardian." No? No, you don't want to be my guardian?


Brian:  No.


Jordan: The better situation and the more ideal way of handling this is while the skies are sunny and clear, while you have your capacity, you should be executing power of attorney documents that say, "In the event of my incapacity, here are the individuals who I want to serve as my agent, my power of attorney agents." You can think of that the same way as you think of a guardian. This person, one, two, three, maybe list three people. Put their address, phone number, email address. That's a much better way to go than guardianship. Other questions?


Brian: With the robust estate planning described, how is guardianship triggered? What needs to occur before power of attorney is taken from the individual and given to the third party?


Jordan: Let me see if I understand your question correctly. When we do estate planning, we prepare these power of attorney documents, and we recommend to our clients, "Listen, give a copy of the power of attorney documents to your agents. If you've designated Brian to serve as your agent for power of attorney, give Brian a copy. That way Brian knows if you have something happen here, you're in an accident and you become incapacitated, he needs to step up and make medical decisions on your behalf."

It should be people who are close to you, people who you trust, people who you know will act in your best interest, and people who generally will be aware of what's going on in your life. That's why we always say estate planning is for everyone. You may not be rich. You may not have a lot of kids or be married. All of us have to worry about the possibility of incapacity at some point in our life. If you want us to address this with you, please come sit down with me for a complementary consultation. We'll go over your different options for your power of attorney documents so that you can avoid that guardianship scenario. Thank you so much.

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