We’re talking about Guardianships in this elder law report, because much of this week I’ve been involved in Guardianship hearings. Guardianships can be very contentious. The situations that surround Guardianships can tear families apart.
The hearings I was involved in this week were almost cathartic. Getting some of the bad blood out during the hearing, allowed for some healing to take place, but the hearings were still stressful. They’re not just stressful for me, they’re stressful for the family involved. It’s best that you avoid Guardianships, but this is about clarifying the Guardianship process for you.
There are three types of Guardianship.
- Guardian of the Estate. This is Guardianship over money and legal matters.
- Guardian of the Person. This is Guardianship over healthcare decisions.
- General Guardianship. This is for both legal, financial and personal decisions such as healthcare.
In a Guardianship hearing, with someone in the family who is incompetent or incapacitated, the money is frozen and healthcare decisions cannot be made until someone is appointed to oversee those matters.
You can avoid Guardianships by appointing a trusted family member or someone else you trust to be your Attorney-In-Fact, an Agent of you, through a document called a General Durable Power of Attorney. This document is general because it covers everything from real estate to bank accounts, and any legal or financial matters where someone else takes care of that for you.
With personal healthcare matters, you are appointing a healthcare agent through a document called a Healthcare Power of Attorney.
You want to be prepared
Having someone on the bench ready to take over if you become incompetent or incapacitated is essential for peace of mind. You can appoint a primary and a secondary in case the primary becomes unable to act on your behalf.
Powers of Attorney can also be set up so that two or more people can:
- Act together
- Separately, or
- You can make them act together so they both know what each other is doing, for example, with mom and dad’s money.
Powers of Attorney are powerful if you want to avoid those contentious, gut-wrenching, family destroying situations surrounding Guardianships and Guardianship hearings.
Now, I don’t want to diminish the importance of Guardianships. They are very important. There are situations where a Guardian needs to be appointed, even a public Guardian. They will come in and take control of assets and healthcare decisions because a family member (or someone else) is taking advantage of an incompetent or incapacitated family member. The court system is there to provide an avenue where a Guardian can be appointed and clamp down and stop that.
A clerk or a judge can put a stop to that by appointing a Guardian and enforce penalties to put a stop to any form of abuse, such as elder abuse or financial abuse.
These are very important and it’s something we deal with at Guardianship hearings. However, in most cases, you can prevent those from occurring by simply having your foundational documents (General Durable Power of Attorney and Healthcare Power of Attorney) in place ahead of time.
I often see people come to my office in dire straits. They’re willing to do some planning to activate a healthcare benefit, they may need to activate a Medicaid benefit to pay for nursing home care, or a veteran’s benefit, such as Aid and Attendance Pension benefit to pay for assisted living care. But if you don’t have these Powers of Attorney in place, it can be near impossible, or very difficult to get those benefits to pay for long-term care.
It is so simple and important to have these documents in place.
With Guardianships, sometimes those options can still be explored, but to do that, you must make a petition to the courts. This is usually done through an attorney, but you must do that every time you need something. You must explain and sell to the court that it’s a good idea to use this benefit or change the assets. The courts are reluctant to use those assets when someone needs them for their care.
Guardianship can be avoided.
If you want to avoid Guardianships, protect your assets and plan ahead, contact me, Greg McIntyre at 704-259-7040 and set up a General Durable Power of Attorney and Healthcare Power of Attorney.
The elder law report can be seen every week on Friday at 10am. Next week we will be talking about Deed Planning, so tune in.
If you have questions about Guardianships, call me, Greg McIntyre and schedule a consult at 704-998-5800 for Charlotte, or 704-259-7040 for Shelby, or visit our website mcelderlaw.com and we will do what we can to help you.
Greg Mcintyre
Elder Law Attorney
704-259-7040
