What is guardianship and when is it needed?
When people think of estate planning, they often think of the instrument that communicates their wishes after they pass away, like a Will or a Trust. But in addition to a Will and a Trust, an estate plan contains documents that help prevent and plan for a guardianship.
What is guardianship and when is it needed?
Decisions require capacity, or the ability to make a well-informed decision. When a person does not have the ability to make a decision (whether because of age, injury, illness, or mental impairment), a surrogate decision-maker is appointed by the court to make personal or financial decisions—or both—for them. This is called a guardianship.
How does a guardianship affect my rights?
Because the person in question, the Ward, lacks the ability to make a decision, Guardianship also involves a loss of rights – the right to marry, to contract, to vote, and to travel – to name a few. When a guardianship is necessary, losing those rights is actually a safety measure for the Ward and for others. However, no one wants to lose their rights prematurely, so it is important to establish alternatives to guardianship. This must happen before a guardianship is necessary.
How does estate planning protect those rights?
A full estate planning package will include ancillary documents that will protect you and protect your rights through the full spectrum of incapacity. These documents tell the world who you trust to make financial and health care decisions if you are unable to do so. They provide a way for you to protect yourself from having all of your rights taken away prematurely. They give someone you trust the authority to protect those rights. These documents include a Durable Power of Attorney, a Designation of Health Care Surrogate, and a provision in your Trust to establish directions for caring for your funds.
But does anyone really use the ancillary documents?
The answer is, yes. In fact, the State of Florida just recognized that these ancillary documents are so important that a change was made in guardianship proceedings to better recognize them. A petitioner must state whether there are any known alternatives to guardianship. Specifically, a person petitioning for guardianship must state whether the alleged incapacitated person (AIP) has designated a health care surrogate or exercised a durable power of attorney. And if these documents exist, the petitioner must state why that alternative is insufficient to meet the needs of the AIP. Then the petitioner must sign the statement under penalty of perjury.
What if a guardianship is the safest thing for me?
There may be a point when your ability to make decisions is such that a guardianship is the safest thing for you and the easiest way for others to care for you and your property. In this situation, the State of Florida still wants to hear what you have to say. As part of the changes mentioned above, a person petitioning for guardianship must state whether an alleged incapacitated person has designated a preneed guardian. This designation tells the court you would choose as your guardian if you could do so.
What does this mean for me?
Preparing ahead for the future is important. At some point we will all face the reality that we can no longer make the multitude of decisions we make every day. That point may come because of death, in which your Will and your Trust will communicate your wishes. That point may come prior to death, in which your ancillary documents and your Trust will communicate your wishes. In either case, the documents must be prepared now, before the need arises.
