How can I avoid the need for a guardian?
In order to avoid the imposition of the appointment of a court approved guardian, a person should have at least two primary documents which take care of the person’s financial concerns, and also the person’s medical decisions. After a person turns 18 years of age and during the earlier period of a person’s lifetime when s/he has the mental capacity to understand the nature of their actions, s/he should meet with an estate planning attorney and discuss the following two documents which may be sufficient to avoid the imposition of a guardianship:
Durable General Power of Attorney For Financial Matters
This creates an agent, or attorney in fact, who makes financial decisions for the principal/person. It is a private document, and it protects against financial abuse. The “durability” means that the agent’s authority survives the principal’s mental incapacity. A principal’s “incapacity” means that the principal lacks the ability to manage finances due to being unable to evaluate, make or communicate decisions, or is otherwise missing, incarcerated, or out of the country, and unable to return. This agency can be revoked. It is terminated upon the principal’s death, or if the agent dies or resigns with no named successor, and if the POA is NOT durable and the principal loses mental capacity. The agent has a fiduciary responsibility to the principal to handle the assets for the benefit of the principal, otherwise the agent may be subject to filing an accounting upon request, as well as other duties.
Durable Power of Attorney For Health Care With Living Will
This nominates an agent to make health care decision based on articulated preferences such as: if near death, then life sustaining treatment not to be started or if started to be discontinued, OR life sustaining treatment continue; if permanently unconscious, same two choices; does the person want medically administered nutrition and hydration; a Do Not Resuscitate; and other specific end of life care decisions. This document is only effective during the incapacity as determined by attending health care provider so that if the person regains capacity then the agency is de-activated. The choice of the agent, and a successor agent, includes that the agent must be age 18 or more, not the person’s health care or residential care provider; not an employee of wither; should have shared values; be diligent in gathering health related information and comfortable talking to doctors to make informed and difficult decisions. The document can be revoked in writing.
Nomination of Guardian
Another document which is helpful to a person’s estate planning well being is the Nomination of Guardian designation which allows a person to nominate a guardian, who would be appointed by the Court, if the need arose. The person may also name person(s) to be excluded from appointment as guardian. The court will appoint the person as long as legally qualified and willing to serve, unless the court finds that the nominated person is unable to carry out the duties of a guardian in the particular circumstances.
Author: Valerie Raudonis
Welts, White & Fontaine, PC is the largest firm in Nashua. If you or your parents are interested to discuss these documents in detail, call us at (603) 883-0797 or contact us here.
This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.