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What is Guardianship and how can it be avoided?

On Behalf of | Mar 4, 2018 | Elder Law, Estate Planning

Everyone wants to be in control of their own life. They want to make their own financial, personal, and medical decisions. Unfortunately, situations, such as stroke and dementia, arise which prevent people from making decisions for themselves. When this occurs, someone else must have the authority to make decisions for that person. If the person has not designated an agent for themselves with the appropriate legal documents, they will have to go through a court process known as guardianship.

A full jury trial is required for all guardianships in Kentucky. Prior to the jury trial, the person over whom guardianship is sought, known as the ward, must be examined by three members of an interdisciplinary team. The interdisciplinary team is made of up a physician, mental health professional, and a representative of the state, typically an Adult Protective Services worker. They will each examine the ward, make a report to the court, and make a recommendation about guardianship based upon those findings. Once these reports are filed, a jury determines whether or not someone has the capacity to care for themselves. If they do not, a guardianship and/or a conservatorship is granted.

The petitioner in a guardianship case is often a family member, but the state can petition if there is no family able or willing to step into the role of guardian. Whoever is named as the guardian will have the responsibility of caring for the ward, physically and financially. They will also be responsible for making period reports to the court This is a huge responsibility and should not be taken lightly.

It is possible for there to be multiple petitioners for guardianship, particularly when there are already complicated family situations. In this case, after a jury has recommended a guardianship, the court would determine which petitioner is best suited to be named guardian. It is not difficult to imagine the effect a proceeding like this would have upon a family.

Guardianship frightens most people because it means they no longer have control over their life. It is also incredibly difficult for families to go through a guardianship proceeding, even if it is relatively straightforward. Avoiding a guardianship proceeding is one of the main goals people have in their estate plan. The best way to avoid guardianship is to plan ahead. With the proper legal documents in place, a guardianship should not be necessary.

A power of attorney will allow an agent to make legal and financial decisions on a person’s behalf. These can be written so that the agent does not have any power until the principle is incapacitated. An agent must be carefully chosen because they are given a huge amount of power over a person’s life.

A healthcare power of attorney, also known as a healthcare proxy, allows a designated agent to make healthcare decisions, usually in accordance with a person’s previously stated wishes. This document should be HIPAA compliant so that the designated agent is able to discuss any medical situation with doctors.

It is unpleasant for anyone to consider a time when they will not be able to make decisions for themselves, but it is better to plan ahead, while still healthy. Planning ahead allows a family to be prepared and for that person to maintain control and express their wishes, even when they no longer have the physical or mental ability to express what they want. Losing control is always frightening, but making a plan can make it less so.