How to Avoid a Guardianship

When you hear the word “guardianship” you may think of children. It seems to be the most common occurrence – a guardian caring for a child. However, guardians also assist adults with their daily lives. Having a stranger take on that guardianship role is not always the best solution, though. With the right estate planning, you can learn how to avoid a guardianship when better choices are available.

Adult Guardianships

Sometimes individuals need help making legal and financial decisions or with health and safety issues. It’s possible an incapacitated person may need help with both. A guardian is someone who steps in to make those decisions for the person, who is called a “ward.”

If other arrangements have not been made, a court may have to appoint a guardian for the ward. Judges and the potential guardian are joined by others in a guardianship proceeding:

• An attorney of record represents the guardian;
• Doctors and other medical professionals will assess the ward and report back to the court; and
• The court will appoint an attorney to represent the ward.

If a guardian is appointed, he or she files periodic reports about the ward’s condition and financial affairs.

However, people can avoid a guardianship by pre-planning.

Potential Wards Can Avoid a Guardianship

It’s best for the “least restrictive form of guardianship” be set in place. Estate planning can offer easier, yet less expensive alternatives to a court-mandated guardianship:

• Durable Power of Attorney – The purpose of the durable power of attorney is for the signer (the future ward) to choose who will act for them if necessary.
• Revocable Living Trust. A grantor may establish a revocable living trust and serve as the initial trustee. However, grantors typically name a successor trustee who can take over the trust if the grantor becomes incapacitated. The successor can manage assets that have been transferred to the trust. This, however, probably will not help if the grantor needs assistance with personal or medical decisions.
• Health Care Surrogate or Proxy. Including an advanced directive in your estate plan allows you to name someone to make medical decisions for you. If an incapacitated person has signed an advanced directive, there usually will be no need for a guardian to make medical decisions for them.

Completing basic estate planning can help you and your family avoid a guardianship proceeding in the future.

Learn More About How to Avoid a Guardianship

John Mangan is an experienced Florida estate planning attorney who has been board certified in Wills, Trusts & Estates by the Florida Bar. At Law Offices of John Mangan, P.A., we help clients develop an estate plan that’s appropriate for their circumstances. Call us at 772-324-9050 to set up an appointment or use our Contact Form. With our office located in Palm City, we also assist clients in surrounding communities like Stuart, Hobe Sound, Jupiter, and Port St. Lucie.