Watching the mental deterioration of a spouse or parent is heart-wrenching. Whether as a result of Alzheimer’s disease, a tragic accident, or the natural aging process, it can be extremely difficult to watch a once vibrant and capable loved one morph into the equivalent of a young child. Whether the change occurs rapidly or gradually, the end result is that your spouse or parent has lost the ability to make important decisions and the capability to manage his/her estate.
Your loved one may not want to admit and acknowledge what is happening, making things even more difficult for you. Just as your spouse/parent may not want to give up the ability to make decisions and manage finances, you may not want to take those rights away. Failing to do so, or waiting too long to step in, however, could have dire consequences. Once you have reached the conclusion that it is time to intervene, the focus becomes how best to do so.
Adult guardianship is a legal arrangement, ordered by a court, whereby one person is granted authority to make decisions and/or manage the affairs of another person (the “ward”) who has been legally adjudicated to be incapacitated or disabled. State laws govern guardianship procedures, also called “conservatorship” in some states. Typically, there are two primary types of guardianships, including:
You could be named guardian of the person, guardian of the estate, or both. In addition, the court may limit the authority of either type of guardian if the full powers of a guardian are not needed. The court can also limit the duration of a guardianship to a specific period of time or create an indefinite guardianship. An emergency guardianship can also be granted when a judge is convinced that one is warranted.
When a loved one is incapacitated, being appointed guardian provides you with all the authority you need to make decisions and manage the estate indefinitely if necessary. There are, however, some drawbacks to guardianship, the most notable of those being the time and expense needed to petition for guardianship. In addition, the court will retain jurisdiction over the guardianship once it is approved, meaning you will need to report to the court on a regular basis and may be required to seek court approval for decisions you make as guardian.
There are alternatives to a guardianship that may provide you with the authority necessary to make decisions and/or manage the estate of your loved one. The most important thing to understand about these alternatives is that they require forethought. Once your spouse or parent reaches the point of incapacity, the legal ability to consent, which is necessary to execute any of the following documents, has been lost. In other words, if you wait until your spouse has been diagnosed with Alzheimer’s and is clearly showing symptoms to decide to execute a power of attorney, it will be too late.
Petitioning for guardianship over your spouse or parent can be a time consuming and costly process. By planning ahead, you may be able to avoid the need for a guardianship altogether by executing one or more of the following documents:
While a power of attorney is a much simpler alternative to guardianship, there are some drawbacks to relying on a power of attorney. One of the biggest of those is that third parties, such as healthcare and financial institutions, frequently refuse to honor a power of attorney unless it includes specific language or was created using their own form. You may run into similar problems if you try to use a Health Care Power of Attorney in one state that was executed in another state. Another potential problem with using either type of power of attorney occurs when the designated Agent is unable or unwilling to serve. Imagine, for example, that your spouse appoints you as his/her Agent but you yourself became extremely ill and could not fulfill your duties as Agent for some period of time. Because there is no judicial oversight to a power of attorney, there is consequently no ready solution. In fact, the only option, in that case, would be for someone else to petition the court for guardianship.
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