Guardianship needs arise when a loved one becomes incapacitated and had not established a Power of Attorney, Health Care Proxy and/or a Living Trust prior to becoming incapacitated. Without having properly prepared these documents prior to becoming incapacitated, no one will be able to manage or attend-to the incapaciated person's personal and/or financial needs.
Many are under the mistaken impression that their spouse or adult children can automatically take over for them in case they become incapacitated. Further, many people who have a child with special needs have always made all personal and financial decisions for that child, even after that child reached the age of majority. However, in fact, once a person is of the age of majority, no one can legally make their health care decisions and/or financial decisions for them unless they have been designated by the now incapacitated person in a Power of Attorney, a Health Care Proxy and/or a Living Trust, or by a Court in a Guardianship Proceeding, at which point a person is named a Guardian for the incapacitated person.
In order to be named someone's legal Guardian, there must be a legal proceeding brought in Court, wherein the Petitioner must ask the Court to declare the alleged incapacitated person legally incompetent. This leads to a process that can be lengthy, costly and stressful.
Our firm is experienced at handling these matters and we do so in a very personal and caring manner. As both partners have significant trial experience, we are well able to handle the aspects of a Guardianship proceedings that occassionally become litigious, i.e., when and if the alleged incapacitated person does not want a Guardian appointed for them and/or when and if someone other than the person bringing the Petition to be named Guardian opposes that person being named because they believe that they themselves and/or someone else should be the Guardian for the alleged incapacitated person.
Our preferred way of handling a case of a person become incapacitated is for that person to come to us prior to the incapacity and have us draft the legal documents discussed herein, which will cover the contingency of a person becoming incapaciated in advance of it actually happening, and allowing the client to determine in advance who they want to handle their personal and financial affairs when and if the unfortunate day comes when they become incapacited.
In short, we want our clients to know that if you want your family to be able to immediately take over for you relative to financial and health care matters in the event you become incapacitated, you must designate a person or persons that you trust in proper legal documents so that they will have the authority to handle such matters for you.
If you want someone designated to handle your financial matters when you become incapacited, such as having someone be able to withdraw money from your accounts, pay bills, take distributions from your IRAs, sell stocks, and refinance your home, you need to establish a Power of Attorney. A Will does not take effect until you die, and therefore, having a Will alone is not enough.
Further, in addition to planning for the financial aspect of your affairs during incapacity, you should establish a plan for your medical care. The law allows you to appoint someone you trust - for example, a family member or close friend to make decisions on your behalf about medical treatment options if you lose the ability to decide for yourself. You can do this by using a Health Care Proxy where you designate the person to make such decisions. In addition to a Health Care Proxy, you should also have a Living Will, which informs others of your preferred medical treatments such as the use of extraordinary measures should you become permanently unconscious or terminally ill.