The goal of guardianship is to protect an adult left vulnerable due to mental health issues or a lack of testamentary capacity. If someone cannot make good decisions on their own behalf and manage their independent life without support, concerned family members or caregiving professionals might initiate guardianship proceedings. Such legal cases can give other adults the authority to take care of someone struggling to manage their own affairs.
Guardianships have been in the news quite a bit recently, largely because of several well-known celebrities subject to the restrictions of long-term guardianships and trying to fight back against the control of their lives by someone else.
Can you create an estate plan that protects you from involuntary guardianship as you get older?
Yes, you can essentially choose your own guardian
If you have the necessary mental capacity now, you can plan for when you do not in the future. If you already have a medical diagnosis that will make the courts question your mental capacity, it may be more difficult for you to plan to avoid guardianship.
However, those who take steps before the onset of significant health concerns can ensure their own plans take precedence over the ideas of other people. You can create powers of attorney now that name people you trust to manage your financial affairs and your medical care in the event of your later incapacitation.
Provided that you create durable powers of attorney, their authority will persist even if the courts do declare that you have a lack of capacity in the future. The authority you delegate to others in your powers of attorney will mirror the authority someone would receive through guardianship. The people you name for those positions can therefore protect you from involuntary guardianship by managing your finances and medical care when you cannot do so for yourself.
Advance planning benefits all adults
Although you may never meet need them, powers of attorney can give you peace of mind. Most people will never experience the degree of cognitive decline necessary for the courts to declare them incapacitated. Still, the future is unpredictable, and the best estate plan protects you against all known significant risks.
Creating estate planning documents like powers of attorney that protect you when you age can be as important as creating documents that leave instructions about your assets when you die.
