Guardianships are often only a topic of discussion after someone’s condition declines significantly. Family members and professional caregivers don’t usually seek out guardianships over nothing. Instead, they take action when they have reason to worry that someone might be financially or medically vulnerable due to their lack of capacity.
After all, a guardianship makes an adult a ward and gives another adult control over their daily life. A conservatorship can give another person control over an adult’s resources and financial obligations. The courts can award guardianship or conservatorship to concerned adults when there is reason to worry about their capacity to care for themselves.
Most older adults hate the idea of losing control of their lives in a guardianship scenario. They may also worry about financial misconduct if they are subject to a conservatorship. Is it possible to establish an estate plan wherein an individual chooses their own guardian or conservator?
Those who lack capacity can’t draft documents
Many people put off creating robust estate plans until their age increases or their health declines. That may be too late to avoid involuntary guardianship.
The unfortunate reality for those facing guardianship or conservatorship litigation as a potential ward is that their lack of capacity prevents them from creating documents in many cases. Any attempt to transfer authority after another party has already initiated legal action might not hold up if the courts review their documents.
The only way for an older adult to plan to avoid a conservatorship or guardianship is to have a plan in place before their cognitive function declines. Powers of attorney are the documents people can use to delegate personal authority to someone they trust.
Many people draft financial or medical powers of attorney. Fewer people consider the possibility that they might be subject to guardianship later in life. Adults need durable powers of attorney if they hope to avoid guardianship as they age.
Unlike basic documents, durable documents continue to have legal power even when the person who drafted them becomes permanently incapacitated. If an older adult establishes durable powers of attorney before their health changes due to age, they can potentially avoid guardianship and conservatorship if their circumstances change later in life.
Adding the right paperwork to an estate plan can make a major difference for potentially vulnerable older adults. Those aware of the risks of aging can create better plans to protect themselves and their loved ones.
