A guardian manages your well-being in the event you become mentally ill, incapacitated, or otherwise cannot make decisions on your own.
Disability planning is often overlooked as a part of estate planning, but is an important element of a comprehensive plan. Disability planning is often overlooked because nobody thinks it will happen to them. After all, death is certain and we can plan easily for that, but becoming disabled or incapacitated is beyond the scope of most people’s thoughts about what their future will hold. Yet disability remains a very real possibility for many people, especially as they age.
What happens if I don’t have legal documentation to specify who I want to act as my Guardian?
If you do not have sufficient documentation to state your wishes regarding who will become your guardian, then the court will initiate the process to appoint someone for you. Usually a family member or doctor/therapist will petition the court to initiate this process if they feel you can no longer make decisions competently for yourself.
Next, the court will appoint an administrator for your case and will gather a committee of doctors, nurses, and healthcare professionals to determine your level of competency and ability to function on your own. If they determine you do in fact need a guardian, then they will go about deciding who should take on that role.
In most cases, a family will have several people who want to take on this role and who may argue over who should assume that role. In other cases, there will be no one to step up and volunteer, so the court will have to impose on someone to appoint them as your guardian.
In either case, there can be a lot of friction between your loved ones over your condition, so an estate plan which clearly assigns this role makes great sense. Of course, it is always a good idea to discuss this possibility with the person of your choosing before a crisis mounts.
How do I include a guardian in my estate plan and avoid this mess?
The first step to take in naming a guardian is to choose the individual. Talk to this person and make sure it is a good fit. You may also want to have a backup guardian in case the first one is unavailable at the time (remember, an event may happen years after you have drawn up this plan and things may have changed with your first choice by then).
Once you have determined who should be your guardian, make it legal by creating an Advance Medical Directive (also known as a healthcare power of attorney or medical power of attorney). This is a legal document that authorizes the person of your choosing to act on your behalf by making any and all necessary decisions regarding your healthcare. This directive only becomes active in the event that you cannot make decisions on your own, so until that happens you will retain the power to make your own decisions.
You should also draw up a financial power of attorney to designate a person (the same person or someone different who is better at handling finances) to make financial decisions, manage your property, your income, and make any other financial transactions that are in your best interest. Using a Durable Power of Attorney will ensure that your guardian can access your finances as soon as is necessary, without having to mess around with court orders.
All in all, if you have a sound estate plan in place that is updated regularly and includes all the necessary components, then you should have no problem being taken care of in the event that you become disabled, incapacitated, or mentally ill. If this should happen in the future, your family will be relieved by the fact that you took the time to plan ahead.
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