Guardianship Avoidance

As individuals enter their elderly years, or when individuals experience a traumatic injury that leaves them incapable of caring for themselves, sometimes it is necessary for their loved ones to establish a guardianship in order to protect and care for the elderly or injured person. Certain injuries, such as traumatic brain injuries, or diseases, such as Alzheimer’s or other dementia related disorders, may leave an individual unable to manage their own personal and financial affairs. In the context of a guardianship, the individual who needs their affairs to be managed is known as a “ward” and the individual managing the affairs is known as a “guardian.” A guardian may become responsible for the ward’s finances or personal care or both. Although in some situations it may be impossible to avoid the need for establishing a guardianship, in some cases it can be avoided if the ward has made the proper preparations.

Most individuals would prefer to avoid establishment of a guardianship because of the invasive and expensive nature of the proceedings. To establish a guardianship there are legal fees for the guardian and the alleged ward, each of whom must have separate attorneys, there are court filing costs, and there are costs related to the establishment of an examining committee constituted of two doctors and a social worker, all of whom must examine the alleged ward to determine his/her mental capacity. Even once the guardianship is established, the guardian must then file annual accountings of the ward’s assets with the court. Although these measures are in place to protect alleged wards since the guardianship process involves removing an individual’s legal rights, it nevertheless places administrative burdens on the guardian.

If an individual prepares for such a time of incapacity by executing a durable power of attorney and a designation of health care surrogate, it might be possible to avoid the need for a guardianship. Since guardianships involve removing a ward’s legal rights (such as the right to contract, the right to consent to medical treatment, the right to manage property, the right to determine residency, and other important legal rights) and vesting those rights in a guardian, the process may be averted if the individual, while having capacity, vested financial and healthcare surrogates with legal authority. If such financial and healthcare designees exist, then they can use their authority to make the necessary financial, personal, and medical arrangements for the individual lacking capacity. This may not eliminate the need for a guardianship in all cases, but it does make it less likely that a guardianship will be needed. Further consultation may be required with an attorney to assess whether pre-existing financial and healthcare designations are sufficient to avoid institution of guardianship proceedings.