Regrettably, we cannot predict when an illness or injury will strike. Nor are we able to anticipate that a loved-one may be left incapacitated. If this ever happens, it helps to have a general understanding of the many options available to you and your family. Depending on the situation, your best option may be to nominate a guardian. Consult with an incapacity attorney in Fayetteville to discuss the options available to you.
Establishing a guardianship involves a court proceeding. The person who is appointed guardian will be authorized by the court to control the personal property and assets of the ward. An important question is: how does the court choose who to nominate as guardian?
How is the guardian selected?
Each county within a state has a probate court that supervises guardianship proceedings. Courts generally have very broad discretion in determining the appropriate person to appoint to this important role. The most common candidates are spouses, siblings and adult children of the person who is incapacitated (known as the “ward”). Though, courts can, and sometimes do, consider the preferences of the ward, when making the decision.
In the case of a guardianship for a minor, when the parents’ will or durable power of attorney identifies a guardian, the court usually defers to the parent’s choice as indicated in those legal documents. Consequently, it is important to include the nomination of a guardian for minor children or disabled loved-ones in your estate plan.
How do I choose the right person to nominate as guardian?
The primary duties of a court-appointed guardian are to manage the welfare and safety of the ward. In other words, it is the guardian’s obligation to protect the ward and his or her assets. However, the guardian is never free to do whatever he or she chooses. In fact, a guardian will be required to file a petition with the court and request permission, in writing, before making certain important decisions.
One thing to remember, when considering possible guardians, is to think beyond the obvious choices. You shouldn’t limit your choices only to close family members. Extended family and friends often make excellent guardians. Nor is it always necessary to focus on the person’s financial situation. You will have the opportunity to address financial considerations in your estate plan, such as including sufficient life insurance coverage or establishing trusts. Likewise, the size of someone’s home need not be a deciding factor. You can include directions for your trustee to provide the funds necessary to build an addition to the guardian’s home or to move to a larger home, if necessary.
The most important criterion should be love, personal or family values and life philosophies. It may be more critical to consider a guardian who shares your values and life philosophies, and who will provide the love and attention necessary to provide the type of care you would have provided.
Unquestionably, the best solution would be to take care of your loved one without the need for a guardianship, but instead with the informal help of family and friends. However, in many cases more formal control may be required . In those cases, consult with your estate planning attorney, who can help you choose the plan that is best for you and your family.
If you have questions regarding guardianship, or any other estate planning needs in Fayetteville, please contact Sexton, Bailey Attorneys, PA online, or by calling us at (479) 443-0062.