Advanced planning can help you avoid a guardianship and the big headaches that accompany it. As I mentioned in my previous post, Beware of the Powers in Powers of Attorney, having valid financial and health care Powers of Attorney is an essential part of any estate plan. This is because having Powers of Attorney in place allows your agent to step into your shoes and handle your affairs if you ever become incapacitated. The alternative to a Power of Attorney if you do not have one and become incapacitated, is that your loved one will have to go to court to have a guardian appointed to make decisions for you, which is time consuming, stressful and expensive. It is the last thing you want your loved ones to deal with if you ever become incapacitated. Or, even worse, a court could appoint a complete stranger as your guardian.
Obtaining a guardianship over another person who is an adult requires going to court and having the court issue an order declaring that person is legally “incapacitated.” What this means is that the court must determine that a person’s ability to receive and evaluate information and communicate decisions is so impaired that the person is partially or totally unable to manage his or her own financial affairs or “meet essential requirements for his or her physical health and safety.” If a court finds that you are incapacitated and appoints a guardian, you will lose – either partially or fully – the ability to make decisions concerning your personal and financial affairs. In effect, you forfeit control over your life to the guardian, who makes decisions for you. And guardians in Pennsylvania are subject to cumbersome reporting requirements, which adds another layer of difficulty if your spouse or family member is appointed as your guardian.
The good news is that in most cases, you can avoid guardianship by having valid financial and health care Powers of Attorney in place. Act now while you are healthy. Once you become incapacitated, you cannot adopt a valid power of attorney. If you would like help preparing Powers of Attorney and other estate planning documents, please contact my office in Jenkintown.