Guardianship could enter the picture on two different levels when you are talking about estate planning and elder law. A guardian could be appointed to care for a minor child if both parents were to pass away or otherwise become unable to care for the child.
When you are planning your estate as the parent of a minor child, you could nominate someone to act as the guardian if a guardianship was to become necessary. If you don’t do this, the state would make the decision without any input from the deceased parents.
Most people would want to seize control of this decision, and you can do so when you plan your estate.
Adult Guardianship and Conservatorship
There is also the matter of adult guardianship and conservatorship. In Iowa, a guardian can be appointed by the court to handle the personal affairs of an incapacitated adult. A conservator would be appointed to act as a financial representative.
The court would be petitioned to appoint a guardian and a conservator if people close to you felt as though you were unable to handle your own personal and financial decision making.
On the one hand, this is a positive mechanism that can provide a solution. On the other hand, there are some drawbacks that go along with guardianship and conservatorship proceedings.
The court may appoint the ideal representatives, but there are no guarantees. It is possible that representatives could be appointed that you would have never chosen on your own when you were of sound mind.
There is also the possibility of disagreements among your loved ones during the proceedings.
In addition to the above, time can be a factor. Immediate need may exist, but the process can sometimes be time-consuming.
It is possible to prevent guardianship and conservatorship proceedings through proactive planning. You could include an incapacity planning component within your broader estate plan by executing legally binding documents called durable powers of attorney.
Most people are aware of the fact that a power of attorney can be used to appoint someone to act on your behalf. However, a standard power of attorney that is not durable would not remain in effect upon the incapacitation of the grantor. Durable powers of attorney do remain in effect if the grantor becomes incapacitated.
With these documents you can name decision makers to act on your behalf in the event of your incapacitation. When you have durable powers of attorney in place, there will be no need for the court to make these decisions for you.
Incapacity Planning Consultation
Everyone should have an incapacity plan in place. If you would like to take action, contact us to request a free consultation.