Guardianship is the court process required when an individual lacks the ability to care for themselves or make their own decisions. Often, the need for guardianship arises when a person experiences significant memory loss or dementia, but it also happens after accidents or other illnesses. A court must appoint a guardian (the responsible person) for the ward (the incompetent individual).
The guardian is responsible for handling the ward’s financial and medical affairs; however, an attorney must represent the guardian, and the court must oversee and approve every aspect of the guardianship. The guardianship usually lasts for the remainder of the ward’s life, and guardianship reports and accountings must be filed at least annually.
Recently, I met with a woman who shared a frustrating, but not uncommon, story about her personal, firsthand experience with guardianship. (We’ll call her Mary.) Almost in tears, Mary told me how she had little, if any, control over her mother’s affairs, and every decision had to be approved by the court, which required her guardianship attorney to file a petition and attend a court hearing, using up her mother’s limited financial resources. Each time Mary called or emailed her attorney with a simple question, she was billed $150. The little her mother had left was being eaten up in fees and costs. Even though Mary was the guardian, she felt like the court and the attorney were unduly controlling and squandering her mother’s estate. That, my friends, is the Guardianship Nightmare!
Here’s the good news - guardianship can almost always be avoided with proper estate planning, documents we call advanced directives. They include a Power of Attorney for financial affairs and a Healthcare Surrogate Designation for medical affairs. These two documents allow you to appoint someone with authority to handle your financial and medical decisions. And importantly, they allow you to choose the person you want to help you – not the court! And they save your loved ones from the frustrating and almost helpless experience of guardianship.
Please, please, please trust me when I say you don’t want to get within 1,000 miles of guardianship, either for yourself or for your family member. If you’d like to make these decisions on your own, without the involvement of guardianship attorneys or the court system, please contact us at (813) 244-7758 or Ross@RossSpanoLaw.com.