A person should have a current estate plan that reflects their desires and designates someone that they trust to manage their estate and health care if they become incapacitated. If they do not have such an estate plan, then they are vulnerable to becoming the ward of a Guardianship if a court determines that they have a substantial risk of harm because of a demonstrated inability to manage their estate of their healthcare needs.

The establishment of a Guardianship can be a very expensive and contentious process. It can result in having a court choose a person to be your Guardian that you do not even know. It can result in your family members getting into significant disputes that can take years to repair.

The procedures for a Guardianship start with a Petitioner hiring an attorney to draft a Petition for a Guardianship over an Alleged Incapacitated Person (“AIP”). The Court then appoints a Guardian Ad Litem (usually an attorney), who acts as the eyes and ears of the court to investigate the claims in the Guardianship Petition, secure a medical report and summarize his or her investigation in a report to the court. The AIP often requests an attorney to contest the Guardianship. I have acted as attorney in all these roles. The court then has a hearing to make a decision.

The issues in a Guardianship are very serious. The Guardianship statute requires that the AIP be advised that the Guardianship proceedings may result in the loss of the following rights:

  1. To Marry Or Divorce;
  2. To Vote Or Hold An Elected Office;
  3. To Enter Into A Contract Or Make Or Revoke A Will;
  4. To Appoint Someone To Act On Your Behalf;
  5. To Sue And Be Sued Other Than Through A Guardian;
  6. To Possess A License To Drive;
  7. To Buy, Sell, Own, Mortgage, Or Lease Property;
  8. To Consent To Or Refuse Medical Treatment;
  9. To Decide Who Shall Provide Care And Assistance;
  10. To Make Decisions Regarding Social Aspects Of Your Life.

Guardianship proceedings can include overbearing Petitioners, battling children or siblings arguing that they should be the Guardian, AIPs who contest the Guardianship, and much more. Why go through all that upset and expense when a properly drafted estate plan can have a succession plan in place that should avoid a Guardianship proceeding entirely.

Please see my Helpful Resources section for more information on Guardianships.

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