A guardianship hearing can be convened when interested parties feel as though an adult has become incapacitated and unable to handle his or her own affairs. Clearly, if you were to recognize that someone that you love was in need of assistance, you would want to take some type of action. A court appointed guardian could handle the affairs of this individual, and you could go forward with the knowledge that competent decisions were being made.
This would be the primary advantage of a guardianship hearing. However, there are some disadvantages as well.
The probate court would have to hear testimony during the guardianship proceeding. The hearing is not going to be convened overnight, and once it is underway it could be time-consuming depending on the circumstances. Meanwhile, there could be important decisions that are pending. This time lag can create difficulties for the individual in question and his or her family.
People who are close to the person who is thought to be incapacitated may not all agree with regard to the appropriate choice of guardian. There can even be those who don’t feel as though a guardian is necessary. Disagreements such as these can slow down the proceedings, and they can cause acrimony among family members.
There is another drawback that is quite considerable. You would probably like to have the opportunity to choose your own potential decision-maker who would be empowered to act on your behalf in the event of your incapacitation. When a guardianship hearing takes place, the probate court is going to make this decision for you. It is possible that the guardian that is chosen by the court may not be someone that you would have selected on your own.
A well constructed estate plan will include an incapacity component. If you take the right steps in advance, you can prevent a guardianship proceeding.
An incapacity plan is typically going to include a legally binding document called a durable power of attorney. When you create a durable power of attorney, you are called the principal or grantor. The individual that you name to act for you is the agent or attorney-in-fact. This agent will be empowered to handle your affairs should you become incapacitated at some point in time.
Because the power of attorney is durable, it stays active even if you do become incapacitated.
When you create an incapacity plan that includes the execution of a durable power of attorney, you can go forward with total peace of mind. If you do become incapacitated late in your life, a hand-picked decision-maker will be in place to make legally binding decisions for you.
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Ryan M. DenmanandDennis D. Duffy
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