Is Guardianship Necessary?

2014 Tax Filing Requirements for SeniorsAs parents age, many children have to grapple with the fact that they may have to begin making financial and healthcare decisions on behalf of their parents.  Normally this comes about due to cognitive issues from which a parent is suffering, but it could simply be a matter of course that parents can’t stay on top of bills and payments the way they used to be able.  For others, it could be a parent’s unwillingness to surrender a driver’s license or accepting that the home may not be the safest place to live anymore.

In the face of trying to talk to parents regarding these concerns, many children automatically come to the conclusion it will be safest and easiest to have the courts determine their parent(s) incapacitated so a child can be appointed guardian and a parent no longer has a legal right to make such decisions.

Guardianship, however, comes at a cost.  It’s not simply a financial cost.  Once a guardian is appointed by the courts, the courts oversee any payments out of the incompetent person’s (ward’s) money and often prevent the ability to do asset protection planning in the face of the long term care needs and expenses of the ward.  Perhaps most important of all, however, is that being determined incompetent by the legal system diminishes the self-worth and autonomy of an individual and should serve only as a last resort.

If a parent has not performed proper estate planning by executing a Durable Power of Attorney and Healthcare Power of Attorney, the family may be left with no other resort than the courts.  However, if a parent has performed proper estate planning, it is often feasible and in everyone’s best interests to stay out of the courts and guardianship proceedings.  With a proper estate plan, parents entrust children (or other agents they authorize) to make financial and healthcare decisions should they no longer be able to do so.  Oftentimes, by working with a parent’s physician and an experienced elder law attorney, children can understand their role and even become empowered in fighting for their parent’s best interest through proactive advocacy without court intervention.

Elder law issues parents and children face such as the ones mentioned above are best handled privately through family and a parent’s trusted medical and legal professionals.  If your parents have executed proper estate planning documents and you are grappling with how best to become empowered so as to manage and protect their best interests, don’t jump directly into guardianship.  Instead, seek the counseling and guidance of an experienced elder law attorney.

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