People are living longer and longer lives, and this is fantastic on the one hand. On the other hand, when you reach an advanced age, incapacity becomes a very real possibility. If you want to be comprehensively prepared, you should take action in advance to brace yourself for possible incapacity late in your life.
Guardianship
People who are close to you could petition the state to appoint a guardian to act on your behalf if they feel as though you can no longer handle your affairs on your own. A guardianship proceeding is a useful mechanism when there are no incapacity planning documents in place. If someone must step in to handle your affairs effectively, your interests can be protected through the appointment of a guardian.
There are disadvantages that go along with a guardianship hearing as well. For one, you would have no control over the choice of guardian. At the present time when you are in full control of your faculties, you probably know who you would choose to act on your behalf if it became necessary. The person who is chosen by the court may not be consistent with the choice that you would have made.
Another one of the disadvantages of a guardianship would be the potential for disagreements among your family members. There could be differing opinions with regard to the appropriate guardian. Hard feelings could ensue, and there could be contentious arguments presented before the court during the guardianship hearing.
The third disadvantage that we would like to highlight is the vacuum that would exist while the guardianship proceeding was underway. Until a guardian was appointed by the court, there would be no legally empowered representative in place to act on your behalf. This can result in negative consequences.
Durable Powers of Attorney
When you hear about some of the disadvantages of a guardianship, you may wonder if it is possible to appoint a representative on your own. This can in fact be done through the creation of a legal device called a durable power of attorney.
The fact that the device is designated as durable is quite relevant. A standard power of attorney that is not durable would not remain effective if the grantor (the person creating the power of attorney) was to become incapacitated.
When you have a durable power of attorney in place naming a representative of your own choosing, this individual would be empowered to act on your behalf should you become incapacitated at some point in time.
There would be no need for a guardianship hearing, because there would already be a representative in place who would be legally empowered to handle your financial affairs.
Mark S. Eghrari, Estate Planning Attorney
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