Guardianships

Should you become disabled, either due to a serious mental or physical condition, what steps have you taken to protect both yourself and your loved ones?

Who have you given the authority to make important decisions concerning both your medical and financial needs? In cases where no precautions have been taken, a close loved one (if one exists and is willing) must petition the Courts to become your guardian. This involves a petition to declare you person unfit or incompetent, in order that another be appointed to make decisions for you. The guardianship process requires the involvement of many people. These include two physicians, two attorneys, your next of kin and a judge who previously knew nothing about you, your preferences or your family's ability to manage finances.

A guardianship can frankly result in many unforeseen consequences. Firstly, your next-of-kin all receive copies of the petition, thereby learning more about your finances than you may have cared for them to know. Secondly, they have to decide among themselves who would be the best candidate to serve. The Court will require testimony in a public proceeding as to who is going to serve to manage both your personal needs and finances.

A guardianship is time consuming, expensive, a potential loss of privacy and may result in the least qualified person being appointed on your behalf.

You can protect yourself in the case of physical disability and mental incompetence through the use of a Durable Power of Attorney and either a Standby or Revocable Living Trust. The difference is that by these documents, you select the person or institution you desire to act for you. In the case of a court appointment, the guardian may be a total stranger.