As our parents start aging, and making decisions becomes more difficult for them, it is time to consider the best option for helping them and keeping them safe. Whether a guardianship, power of attorney, or other legal instrument is the better idea is something to discuss with your elder law attorney. If guardianship of your parents seems to be the best option, what do you need to know?
What is a Guardianship?
Just as you might suspect, a guardian is someone who protects another. In the legal arena, a guardianship is a process by which someone is appointed to make decisions on behalf of another, for the purpose of taking care of, and protecting that person. The process is usually handled in the Probate Court. The guardian will be given the power to make decisions for the ward (the person in need of care), including decisions regarding where the person will live, how their money will be spent, and what type of medical care the ward will be provided.
A full guardianship is the most restrictive, placing the guardian in control of nearly every aspect of the ward’s life. On the other hand, a limited guardianship can be established when only specific areas of the ward’s life, such as finances or healthcare, need to be controlled. Guardianships can also be limited in time. Since a guardianship will significantly affect the ward’s individual freedom, the decision to establish a guardianship should be taken very seriously. Nonetheless, a guardianship is still one of the most effective ways to protect someone from abuse or victimization.
Advantages of guardianship
Once a guardianship has been established, the guardian will remain under the probate court’s supervision. The guardian will be required to obtain permission from the court to make certain decisions. This continuous oversight by the court provides the greatest level of protection for the ward. This can be very important if there is a concern about mismanagement of funds or a potential breach of fiduciary duty by the guardian.
An advantage for the guardian is that the court-appointed designation brings with it a degree of authority that will prove helpful in dealing with third-parties. The legal designation of guardian will encourage others to cooperate when you are attempting to enter into transactions on behalf of the ward. However, a guardianship is also an emotional process, that can be time-consuming, complex and expensive.
Disadvantages of guardianship
Appointment of a guardianship is often expensive because of the required court supervision. Also, the guardianship proceedings are public, which means the personal details regarding the ward’s incapacity and their financial situation will be open to the public. In some cases, this can result in embarrassment for the ward. The biggest disadvantage may be the loss of autonomy and control over important aspects of the ward’s life. For some elders, this aspect of guardianship can be very humiliating.
Regrettably, we cannot predict if or when a guardianship may be necessary. If a guardianship needs to be considered, it helps to have a general understanding of the options available to you and your family. Consult with an incapacity attorney in Fayetteville to discuss the options available to you.
If you have questions regarding guardianship, or any other estate planning needs, please contact Sexton, Bailey Attorneys, PA online, or by calling us at (479) 443-0062.