If you have a relative or a friend whose physical or mental condition has made it impossible for him to make choices or communicate those choices, a guardianship proceeding may need to be initiated. Unless your loved one has created a power of attorney and named someone to act as an agent, guardianship may be the only option for getting the necessary authority to take control and to manage his assets.
Give us a call today at 800-295-1917 to find out more about how we can assist you in making sure you avoid guardianship and to get answers to questions including:
- What is guardianship?
- Are there any alternatives to guardianship?
- How can an elder law attorney help you avoid guardianship?
What is Guardianship?
If someone cannot make decisions for himself, that person will need a guardian. Children, for example, need guardians. Their parents usually fulfill this role, unless a parent is unfit and unable to care for the child. Adults may need guardians too if they have a physical problem or a mental issue that prevents them from making choices in their own best interest and communicating their needs and preferences.
When an adult needs a guardian, court proceedings must be initiated. A concerned friend, a relative, or a caregiver may begin the process by petitioning for guardianship. The court will conduct a hearing to assess whether the person who is potentially of unsound mind or body is, in fact, incapacitated and unable to manage his or her own life. The court may then declare that person a ward. An assessment will be made of who would be an appropriate guardian for the ward, and that person will be appointed guardian.
The guardian can take control of managing assets of the ward and making decisions on behalf of the ward. Guardians have a fiduciary responsibility to act in the best interests of their ward, and the court will oversee the actions of the guardian in order to make certain that the guardian is fulfilling his role and living up to his duty.
Are There Any Alternatives to Guardianship?
Guardianship proceedings are not pleasant for family members or friends of an incapacitated person, who must go through a complicated and sometimes costly court process. An attorney can represent and guide those seeking guardianship, taking care of the legal technicalities. Still, the process will involve going to court to argue that a loved one is not competent, which can be stressful for those involved.
There are alternatives that can save family and friends from having to go through this process in the event of incapacity. However, it is important to make provisions to avoid guardianship before guardianship actually becomes necessary or it will be too late. While still of sound mind, a power of attorney could be created. A durable power of attorney would allow you to name an agent in the event you become incapacitated. The agent could then take control of making decisions and managing assets, without any type of court involvement or guardianship proceedings.
A living trust is another option, which allows for the management of trust assets. The trust can be created, the creator can be the trustee, but a backup trustee can be named to take over in the event of incapacity.
Both of these options allow a person to have control over who acts for him in the event of incapacity, and both make it easier on family members – so both may be preferred to guardianship.
How Can an Elder Law Attorney Help You Avoid Guardianship?
Law Offices of Kobrick and Moccia
At the Law Offices of Kobrick & Moccia, we understand the guardianship process and we can help you to make sure your relative is taken care of and that his assets are not lost or devalued in the event of incapacity. We can provide assistance with the creation of a power of attorney and/or with the creation of living trusts so guardianship will not be the only option in the event of incapacity. We serve Garden City, Hauppauge, and surrounding areas in Long Island, as well as Westchester, so call now at 800-295-1917 to find out more about the assistance that we can offer.