Why You Want to Prevent a Guardianship

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Many people understand that estate planning acts as a preparatory measure.  Unfortunately, most people often don’t understand enough about why estate planning is vitally important.

 

People forget that they need to plan for the unforeseen, and if they fail to plan, the results can be catastrophic. For example, what if you develop dementia and lack the ability to handle your day-to-day affairs? Or, what if you become involved in a life-altering car accident, rendering you incapacitated? While these scenarios are grim to think about, they are still possibilities.

 

In an article released by the American College of Emergency Physicians addressing health care directives, it was found that nearly two-thirds of Americans do not have living wills. A living will (also known as an Advanced Health Care Directive) is a document that identifies healthcare wishes if you lack the ability to communicate.   If you do not have this document and are unable to make your own health care decisions, the court would need to intervene by appointing a legal guardian.

 

A big problem with legal guardians, also known as “conservators” in certain states, is that the guardian is not somebody you have chosen.

Guardians are selected via a court process and may or may not be someone you would like to handle your health care needs.

 

In essence, a guardianship is like revoking a person’s rights to make his or her own decisions and handle his or her own affairs, because they’re no longer physically able to.

 

There are obvious ethical complexities with guardianships, as they will generally involve medical evaluations, and can, unfortunately, be the catalyst for resentful family members to seek revenge. For example, in 2010, a Nashville singer/songwriter, Danny Tate, was declared incapacitated. However, he eventually regained his mental cognition (he had been declared mentally disabled), but his brother, the declared conservator retained control of his assets insisting he was still mentally ill. It took a two-year court battle for the court to reinstate Tate’s constitutional rights to act on his own behalf.

 

Danny Tate’s experience is just one example of how serious a Guardianship/Conservator type of scenario can become. Taking the time to prepare a Durable Power of Attorney and an Advanced Health Care Directive are ways to prevent a messy Guardianship.

 

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