When you become incapacitated, you have someone else that makes your decisions for you. If you have done your estate planning you have chosen this person in your living will and have given them Power of Attorney (POA). If you have not done estate planning, then a competent adult can petition to the court to gain guardianship authority. Unfortunately, since the court will now be responsible for picking out an individual to make decisions on your behalf, you run the risk of the court picking the wrong individual. In this article we’ve broken down the risks of court-appointed guardianship and what you can do to mitigate them.
How Are They Appointed?
A guardian may be appointed if there is no family in the area. In the case you are in the hospital, the facility will contact a state department and they will appoint a guardian before the family even knows what has happened. Once there is a court-appointed guardian, it is very difficult to remove them. A guardian can also be appointed by the court if there is any conflict among the family regarding your care. This will tell the judge no one is acting on your best interest and will find someone who does, even though they ultimately may not.
As the name suggests, court-appointed guardians are just that - people chosen by the courts to act in your best interest. While the court may certainly aim to provide you with the best possible choice of a guardian, there is no guarantee that the designee will keep your interests at heart. With the power granted to said individual, which can include handling your finances or medical decisions, having someone appointed by people who don’t know you personally can be a risk not worth taking. The appointed guardian would have control of your estate; they could sell your asset with or without your family’s permission and do it legally.
How To Avoid Them
To avoid having a court-appointed guardian, the best thing you can do is grant power of attorney to a family member or person that you absolutely trust. An estate plan should contain powers of attorney for medical, financial, and general matters. You also should create a revocable living trust. You can set up terms as to how assets can be used and any specific instructions on how you wish to proceed in your incapacitation. Both of these should be reviewed in a given time and there should be successors in the event original POAs or trustees cannot fulfill their duties. If no one else is left, then the risk of having court-appointed guardians is at large. You should also speak to family members about your plans and decisions so there are fewer chances of disagreements.
If you or a loved one are looking to create powers of attorney, there is no better or more qualified person you can reach out to than a licensed estate planning professional. Take away the guesswork from securing your future and consult with an attorney.