Avoiding Guardianship

December 28, 2018

The term “Guardianship” makes most people think of a child whose parents passed away or are in the process of getting divorced.  However, in the estate planning arena we speak of Guardianships for adults.  In Wisconsin, a Guardian is an agent, appointed by the Court, to take over for an adult individual who becomes incapacitated and cannot handle certain tasks or make certain decisions for him/herself.  A disabled child turning 18 or an older adult that has been diagnosed with a degenerative brain disorder are the most common types of guardianships that the estate planning attorneys at Ruder Ware face. 

There are two types of guardians: a guardian of the person (an agent who can make health care decisions for the individual) and a guardian of the estate (an agent that steps into the individual’s shoes for financial decisions).  One person can be appointed both guardian of the person and of the estate.      

Guardianship is a Court process.  To get appointed guardian, there is a significant amount of paperwork that has to be filed with the Court: a petition with supporting documents, a physician’s report, and a report by a Guardian Ad Litem are all necessary before the Court will even review the petition for guardianship.  Acquiring the necessary documentation and attending a hearing in front of a Judge, even in an uncontested guardianship matter, can be very costly and time consuming.  Requesting that an individual be protectively placed in a facility will only add more expense and bring in additional experts and reports that will need to be filed with the Court. 

So – how do you prevent your family from having to go through the guardianship process?  The answer is simple: when you are still able to make the decision on who should be your agent you need to prepare power of attorney documents and name that person.  Power of attorney documents offer flexibility, allow you to plan for contingencies, and to name successor, alternate, and co-agents.  As with guardianship, you can appoint a different person to be power of attorney over your health care and finances, or name the same person for both roles.  You can also revise, revoke, or completely restate your power of attorney documents at any time (so long as you are competent).    

A word of warning: An agent’s authority under a power of attorney document ceases when the principal dies.  Other estate planning will need to be done to elect someone to take care of distributing assets and paying obligations upon death.

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