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Why You Need a Durable Power of Attorney

A guardianship is defined as one or multiple people acting on behalf of someone else. The guardian is the person(s) with the power to make decisions, and the person with a disability is the adult who needs help with their finances, health care, living arrangements, and daily affairs due to old age, or physical or mental limitations. Some guardianships are broader than others. For example, some guardians may only have authority over financial decisions, not medical ones.

Common reasons for guardianship include an adult in a coma, with dementia, or developmental delays. A guardianship is different from durable powers of attorney. A durable power of attorney is a legal document that adults can set up for themselves if they fear they will lose the capacity to make decisions at some point. They can choose who makes important decisions for them.

Guardians are put in place through court authority to manage the affairs of those who can no longer make their own decisions about health care or finances. Without a durable power of attorney reflecting your wishes, family members may petition a court to appoint a guardian to manage your well-being if you become incapacitated.

What Does Guardianship  Determine?

A “guardian of the estate” guides financial matters while a “guardian of the person” manages personal and medical decisions. In less complex circumstances, one person may oversee both estate and personal/medical guardianship s. Both types of guardians follow court supervision and are held accountable to that court.

This court supervision acts as a safeguard, preventing guardians from mismanaging property or taking advantage of those in a guardianship. The guardian must periodically report the details of their actions to the court. Frequently, courts will require the guardian to seek permission before making major decisions, such as terminating life-support or requiring medications (medical and personal guardianship s) or selling real estate or other property (financial guardianship ). Additionally, a financial guardian must often post a bond as an insurance policy protecting the person with a disability’s estate from mismanagement.

Avoiding a Guardianship

Guardians must serve the person with a disability’s best interests and be chosen based on the ability to be competent and trustworthy. Yet guardianships are often expensive and can be avoided by adequately preparing durable powers of attorney before a physical or mental health crisis occurs. These legal documents provide a template for decision-making based on your wishes by the designated power of attorney(s). In the absence of these documents, the court will often appoint a guardian who is a relative that is available to serve, such as a spouse or adult child.

A guardian will act until the court issues an order ending this responsibility which usually follows:

  • The person with a disability’s death
  • The person with a disability no longer requires this level of assistance
  • In the case of a financial guardianship, all assets are spent
  • The guardian can no longer handle the responsibilities or resigns
  • The court removes the guardianship due to a successful legal challenge by the person with a disability

To avoid unwanted guardianship, draft your durable power of attorney while you are young and have all your faculties. Although it is unpleasant to consider, you never know when your life can change drastically. Meet with an elder law attorney to discuss your concerns around potential physical or mental illness. Your chosen representatives will be those you trust to make decisions in your best interest, and you will have peace of mind knowing that future decisions will reflect your wishes. For assistance, please contact our Wichita office at 316-830-5603.

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