The highly capable attorneys of Surprenant & Beneski, P.C. help clients throughout Southeastern Massachusetts deal with all kinds of estate planning issues from asset protection to preparation and execution of foundational documents. One important issue we assist with is how to avoid the need for guardianship should a loved one become incapacitated and unable to manage their affairs or meet their personal needs.
Such situations do not only arise for the elderly. Sadly, even a young adult can, due to illness or injury, require physical, cognitive, or emotional help to get through their daily routine. One way to handle this need is to establish a guardianship. But it is not the only way. In this blog, we will explore the pros and cons of a guardianship and how you can avoid establishing one if you wish.
What Is a Guardianship?
A guardianship is a legal arrangement authorized by a court that grants one individual or entity (the guardian) the power to make decisions for another (the ward). Guardianships are typically established when someone is deemed incapable of making decisions for themselves due to mental incapacity, illness, or disability. The guardian has the authority to make personal, medical, and sometimes financial decisions on behalf of the ward.
How Can a Guardianship Be Intrusive in a Loved One’s Life?
Although guardianship can provide necessary protection for those who cannot care for themselves, it can also be highly intrusive. The process requires a court determination that the individual is incapable of managing their own affairs, which can be demeaning and emotionally difficult to accept.
Once established, the guardianship removes significant personal freedoms from the ward, including the right to make decisions about where to live, how to spend money, and what medical treatments to receive. The guardian’s decisions may not always reflect what the ward wants or is believed by other family members to want, leading to potential conflicts among relatives and a loss of autonomy for the individual.
Alternatives to Establishing a Guardianship
Recognizing the limitations and intrusiveness of guardianships, it’s essential to explore alternatives that preserve the incapacitated individual’s autonomy while providing the necessary support. Surprenant & Beneski, P.C. advises on several effective alternatives:
Durable Power of Attorney: This legal document allows an individual to appoint someone they trust to manage their financial affairs if they become incapacitated. Unlike a guardianship, which requires court involvement, a durable power of attorney is established privately and can reflect the individual’s specific wishes about how their finances should be handled.
Health Care Proxy: Similar to a durable power of attorney, a health care proxy appoints a trusted individual to make medical decisions on behalf of a person if they’re unable to do so themselves. This ensures medical care aligns with the individual’s wishes without the need for court-appointed guardianship.
Revocable Living Trust: A revocable living trust allows an individual to maintain control over their assets while alive and competent. They can designate a successor trustee to manage the trust’s assets if they become incapacitated, avoiding the need for a guardian to take over their financial affairs.
Joint Ownership: For financial matters, establishing joint ownership of property or accounts means that the co-owner can continue to manage the assets without the need for a guardianship if the other owner becomes incapacitated.
Each of these alternatives offers advantages over guardianship by allowing individuals to plan ahead for potential incapacity and feel more in charge of their own life. Each provides a way to maintain personal autonomy, ensure decisions are made by trusted individuals, and avoid the emotional and financial costs associated with the guardianship process.
Contact Our Experienced Incapacity Planning Attorneys Today
At Surprenant & Beneski, P.C., we understand the importance of planning for all eventualities, even the difficult one that involves your future incapacity. Since the reality is that a sizable proportion of elderly individuals will require assistance with health, financial, and other matters, now is the time to make sure your personal wishes will be paid attention to if you become disabled. Get in touch with Surprenant & Beneski now so we can help you make sure that your desires are adhered to, your dignity is retained, and you are always treated with respect.