Guardians: The Basics

If you become incapacitated, someone will have to act for you; wouldn’t you prefer to choose that person?

If your wishes are not in writing, family members or close friends may be forced to file court proceedings to obtain legal authority to manage your affairs.  Once a guardian is appointed you lose the right to make even basic decisions about your property and your life.  Court proceedings to establish a guardianship can be time-consuming, are open to the public, and can sometimes be awkward and embarrassing.  Preparing the right documents can help you avoid guardianship; think of it as a form of “insurance” that only takes effect if you need it.

Here are three things you need to know about guardianship – and how to avoid it.

1. You can avoid guardianship with a Power of Attorney and Healthcare Directives. By creating a Power of Attorney, you give a person you choose the right to carry out your financial decisions.  Healthcare Directives can prevent extraordinary care or unwanted medical treatment, ensure your wishes are carried out, and spare family members from agonizing about medical decisions they otherwise might be forced to make on your behalf.
2. Guardianships are established through court proceedings and can be costly.  A petition is filed explaining the need; examinations by doctors or mental health professionals may be required; notices of the proceedings are posted, and an open hearing will eventually be held.  The cost:  Typically thousands of dollars.
3. If a guardian is appointed, the court order will determine the scope of decisions.  Guardians may be granted one or two powers or may have almost total authority to make financial, property, and lifestyle decisions (especially if the ward is a minor.)

In order for Powers of Attorney and Healthcare Directives to be enforceable, documents must be properly worded and meet all legal requirements.   If you hope to avoid the possibility of guardianship, contact our office for help in creating the right legal tools to protect and serve your interests.

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Mark S. Eghrari, Estate Planning Attorney

Mark S. Eghrari is an attorney in private practice in Smithtown, New York. He has been in practice since 1988. Mark S. Eghrari provides extensive estate and tax planning services to individuals and businesses. Mr. Eghrari’s primary focus is helping clients avoid probate, minimize or eliminate Federal and State Estate taxes and protect their assets from the high cost of nursing care, if they become ill.

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