4 Ways to Avoid Guardianship
What is a guardianship, and when is it necessary?
In Maryland, a guardianship is usually defined as a protective legal proceeding for someone who is incapacitated or disabled and unable to manage his/her own financial and/or medical affairs. Incapacitated, as it relates to an adult, means that an individual is no longer able to receive and evaluate information and communicate decisions. This usually applies to the ability to make financial decisions or care-related decisions.
A guardianship is necessary when a person is incapacitated or disabled and there is no one with the legal authority to act on behalf of the alleged disabled or incapacitated individual regarding his/her finances, medical care, and welfare. Being vulnerable to exploitation can be another reason a guardianship for an alleged disabled or incapacitated individual may be warranted. These situations, accompanied by a lack of legal documents governing such situations mean that a guardianship is necessary. The process can be long, complex, and financially draining. However, the good news is that, with proper planning, it is possible to avoid guardianship.
How do I avoid guardianship?
There are several actions that can be taken to avoid guardianship (or, more specifically, avoid the need for a guardianship.) At McDonald Law Firm, we can assist you with establishing a plan for if or when you or an elderly loved one becomes incapacitated.
- Durable Power of Attorney – By having a power of attorney in place, the stress and expense of a guardianship can be avoided. This also gives an individual the final say in who will make decisions relating to his or her finances. A durable power of attorney names an agent who has the power to act in the place of the alleged disabled or incapacitated individual regarding financial matters. By creating a durable power of attorney, the alleged disabled or incapacitated individual allows this power of attorney to stay in effect if or when the individual becomes unable to handle his/her own financial affairs.
- Healthcare Power of Attorney – A healthcare power of attorney is a document that grants authority to an agent to make healthcare decisions for the person signing the document. Healthcare decisions can include decisions related to facility placement, admittance to a hospital, or choosing and hiring healthcare aides.
- Revocable Living Trust – Trusts can have a triggering mechanism, such as a doctor’s determination of incapacity, for a trustmaker who is serving as trustee for their own trust. If the trustee is determined to be incapacitated, the successor trustee can then assume control of the assets to make sure they are protected.
- Living Will – A living will detail an individual’s wishes for end of life medical care. It can include what medical treatments the individual would or would not like to have in specific situations. This is used in conjunction with the healthcare power of attorney to allow for the wishes of an incapacitated person to be executed.
A guardianship can be costly, long, and difficult. This can mean that an incapacitated person is unable to receive the help they require. At McDonald Law Firm, we can walk you through all of the necessary legal provisions, provide explanation, and prepare the paperwork to avoid guardianship. However, if a guardianship is required we can assist you in filing the guardianship petition as well as walking you through the court process.
If you have any questions about how to avoid guardianship or have questions regarding estate planning, special needs planning, Medicaid/long-term care planning, please feel free to contact Andre O. McDonald, a knowledgeable Howard County estate planning, special needs planning, Medicaid/long-term care planning attorney.
DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT ENTENDED TO CONVEY LEGAL OR TAX ADVICE.