No one knows how long they get to live with a clear mind and the capacity to make independent decisions. Ideally, proactive care and estate planning has designated someone we trust to take over long before necessary. Absent pre-arrangements, if incapacity strikes, families can go through the legal process of setting up a guardianship. Read on for pointers.
Designated Decision Makers
Ideally, way before capacity becomes an issue, a comprehensive estate plan has authorized a power of attorney to handle financial matters, and a health proxy for decisions related to healthcare. These designations, made and communicated with loved ones well ahead of declines, can be both life saving and stress reducing if independence becomes too difficult or dangerous. Without proactive estate and care planning, court intervention may become necessary in the face of declines. Weinstein & Randisi Law offers this advice about evaluating the need to intervene in the lives of loved ones, like aging parents:
Taking steps early can reduce confusion and allow your parent to stay involved in the decision-making process for as long as possible. Look for signs in your parent’s day-to-day life that may indicate a need to act, such as:
- Unpaid bills or unusual purchases
- Missed medical appointments
- Trouble understanding important mail
- Expressions of fear or confusion around decision-making…..
When these issues disrupt an individual’s ability to make sound decisions, guardianship allows a responsible individual, the guardian, to take charge. They will handle key duties for the alleged incapacitated person (AIP), such as:
- Managing finances
- Coordinating medical care
- Overseeing housing arrangements
- Making personal decisions in line with known wishes
To initiate guardianship, you can file a petition with the court. The process typically involves a hearing where the court will evaluate whether guardianship is necessary.
If approved, the judge will appoint a competent individual to take on the responsibility of guardianship.
Keep in mind that states have their own protocols related to establishing guardianship, which is basically “a legal relationship in which a person (the “guardian”) is appointed by a court to make decisions on behalf of another adult (the “ward”).” Based on the situation, courts can consider a full or partial guardianship, as well as these four types of guardianship:
- Guardian of the person (makes decisions about personal and medical affairs)
- Guardian of the estate (makes decisions about financial affairs)
- Guardian of the person and the estate (makes decisions about all affairs)
- Temporary guardianship
Given the seriousness of the role and responsibilities involved, courts typically require guardians to secure a guardianship bond. Essentially, a guardianship bond is a type of fiduciary bond, which protects the interests and affairs of the ward. Learn more about guardianship bonds with this short video. The requirements of guardianship bonds vary, but as a national, direct writer, Colonial Surety provides bonds to meet the specific requirements in every state. At Colonial Surety Company, all fiduciary bonds, including guardianship bonds, are available directly and digitally. The steps to obtaining guardianship bonds are easy: get a quote online, fill out the information, and enter a payment method. Print or e-file the bond from anywhere—even while at court.
Obtain Guardianship Bonds Here.
Good To Know: Other Options?
Depending on the circumstances and location, a conservatorship may also be considered, and works similarly to a guardianship, as it must be done via court intervention. Note that conservatorships are often poorly portrayed in high profile, newsmaking cases, but our law and risk experts, Adam Schwartz and Richard Clarke provide insights to demystify conservatorships in the New Jersey Law Journal.
There are also many less restrictive approaches than guardianship or conservatorship, but these approaches must be set up while the individual can still participate in decision making:
Guardianship takes away a person’s right to make decisions for themselves. Whenever possible, you should explore less restrictive alternatives first. Alternatives to guardianship include:
- Medical power of attorney to manage medical decisions
- Durable power of attorney to handle financial affairs
- Establishing a special needs trust
- Designating a representative payee to receive the person’s government benefits
Family and Estate Law?
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