There may come a time when you have to consider whether someone you love needs a legal guardian, that is, someone who is responsible for their personal affairs. A guardian is appointed by a judge for the benefit of an incapacitated individual, referred to as a “ward.” Courts have broad discretion in deciding who to appoint as guardian, though they generally look to a spouse, adult child, parent, brother or sister to fill this important role. In most cases, the court considers the preferences of the ward if they are known. There are also times when an independent professional, like an attorney, is appointed when there is no other choice.
Once a guardian is appointed, that person becomes responsible for managing the personal, medical and financial affairs of the ward. A guardianship can be terminated under certain situations but, once in place, a guardianship generally does not end unless the court agrees. This can be a very important decision. So, it is equally important to consider both the advantages and disadvantages in taking this step.
Advantages of a guardianship in Fayetteville
One important advantage to having a court-appointed guardian is that the person chosen by the court remains under the court’s supervision and control. This means that the guardian cannot make many decisions without court permission. For example, a guardian must file a petition and obtain written permission from the court before making the decision to withhold life-saving medical treatments.
Court oversight means greater protection for the ward, especially when it comes to breach of fiduciary duty or mismanagement of funds. In Arkansas, the guardian is required to report to the Court at least once a year on the status of the ward’s affairs. The fact that the court appoints the guardian gives that person a certain level of authority that is very helpful when dealing with third parties on behalf of the ward. However, guardianship can also be an emotional and sensitive process, as well as time-consuming, complicated and expensive.
Disadvantages of a guardianship in Fayetteville
Because of the amount of court oversight required, the process for appointing a guardian is usually rather costly. Another consideration is the fact that the appointment of a guardian is a public process. As such, personal details of the ward’s disability or incapacity and their financial affairs are open to the public and could cause embarrassment.
Possibly the most important consideration is the fact that the appointment of a guardian strips the ward of their ability to make their own decisions about most things. For many elderly people, this situation is the most humiliating. But, there are less restrictive alternatives that can be considered. Some common alternatives include Advance Healthcare Directives, Durable Financial Power of Attorney and Revocable Living Trusts. With some advance planning, the appointment of a guardian may not be necessary. However, if your loved one is at the unfortunate point where he or she can no longer understand and sign such legal documents, a court-appointed guardian may still be required to protect their interests.
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