Avoid a Guardianship with Proper Planning

Guest Article by: Lisa Kremer, J.D., Gordon Thomas Honeywell LLP

Note: this is a general guide and not intended as legal advice.

Guardianship 101 

In a guardianship, one person (the “guardian”) makes decisions for another person. Guardians can only be appointed by the court, and the courts only appoint guardians when there is a person who is, in some way, deemed legally incapacitated. Guardianships often are necessary when people are unable to manage their own money or health care, or are a danger to themselves or to others.

In a guardianship, the Court revokes some of the incapacitated person’s legal rights. Some examples of rights that may be revoked in a guardianship are the right to marry, the right to vote, the right to enter into a contract, the right to make a Will, the right to choose someone to act on your behalf, the right to have a drivers’ license, to own a house, to consent to medical care, or to make decisions regarding the social aspects of your life.

Courts won’t impose a guardianship unless there is a proven need, as evaluated by an independent person (a Guardian ad Litem), who consults with a medical doctor and others. If the subject of the guardianship does not want the guardianship, the Court may order a full trial be held to determine whether the person is incapacitated. The trial would include witnesses and sworn testimony.

It is probably not necessary to point out that many aspects of guardianships are uncomfortable, and can be quite expensive. It is uncomfortable for the person at the center of the proceedings to have to submit to an evaluation of whether they are competent to conduct their affairs. When family members disagree about the need for a guardianship, it is uncomfortable and stressful for everyone. And in an opposed guardianship, legal fees can be very expensive.

There are some mitigating factors. Washington’s legislature specifies that incapacitated people’s rights should be restricted only to the minimum extent necessary, and that incapacitated peoples’ liberty and autonomy should be preserved as much as possible. When a guardianship is instituted, it can be limited to the “estate” (financial resources) or the “person” (personal and medical decisions), or both. Even within a partial guardianship, the guardianship can be limited to certain types of decisions.

Planning Ahead 

But an even less restrictive option is to avoid a guardianship completely. You can do this by planning ahead and executing Durable Power of Attorney documents – one for health care and medical decisions, and one for the management of finances. When you execute a Durable Power of Attorney document, you are telling other people, such as doctors, bankers, and the courts, the names of the people who you trust to manage your finances for you and make decisions for you. If you become incapacitated, the people you have named can make those decisions for you without the need for a guardianship.

Power of Attorney documents are often not effective until a doctor or judge has declared the subject person to be incapacitated. But some people choose to make Power of Attorney documents effective immediately, so their loved ones can begin making decisions for them right away, without the need for a declaration of incapacity. A strong Power of Attorney document often will avoid the need for a guardianship completely. However, if a guardianship is needed, your Power of Attorney document can specify who you would like your guardian to be.

Finally, Power of Attorney documents contain checks and balances. These are not as strict as guardianships: Guardians who manage their wards’ money must report to the Court periodically with a full ledger showing the ward’s finances. With a Power of Attorney document, no report is usually necessary. But a concerned person, such as a family member, can request that the person managing your money using a Power of Attorney document make a full report regarding the use of your funds. They can even order a court hearing to review how your funds are being used.

 

Lisa Kremer is an attorney with Gordon Thomas Honeywell LLP in Tacoma. She helps clients with estate planning, probates, guardianships and business matters. You can reach her at 253-620-6455 or www.gth-law.com

Published on October 1, 2014.