It is often wise to plan for the various contingencies associated with the later stages in life. While something like regularly updating your will or inquiring about nursing home resident rights could surely be useful to any older estate owner, those plans can become null if the person has not accounted for the event of their incapacitation or loss of competence. If you are no longer equipped to make your own decisions, and you have not prepared for this possibility, state intervention may become necessary, with your health and your finances both being on the line. That is why it is extremely important to talk with your elder law attorney about assigning a guardian who can make some or all of your decisions, if such a situation were to arise.

What necessitates guardianship?

There are many situations in which a guardianship could be helpful or necessary. At times, the course of a person’s life is such that in their later years, they lack the capacity to make informed decisions. In other instances, an accident, or another unexpected event, takes that ability from them. There are cases, too, in which the person in question is simply too physically weak for any decision-making. Whatever the circumstances may be, a guardianship set up in advance could be beneficial. If there is a complicated issue regarding your inheritance or a medical procedure you are about to undergo, a guardian can use their judgment and your instructions, to ensure that the integrity of your wishes is preserved even when you are unable to express them.

The lack of competence of the person whose decisions have to be made for them (also known as the ward), as well as the competence of the guardian have to be validated in court, either via a petition by the prospective guardian, or during proceedings started up by the court. Typically, complete psychological and physiological evaluations of the ward would be required. The law has a delicate balance to maintain, as it is concerned both with respecting the potential ward’s civil liberties, and with the protection of their life and dignity in the event of true incompetence.

Who can be a guardian

While there are no specific qualifications a guardian needs to hold, they still have to answer a basic list of requirements. For example, a guardian (also known as a conservator), has to be at least 18 years of age and of competent mind to be able to make the other person’s decisions for them. In many situations, an adult child ends up serving as guardian for their older parents. Sometimes, an elder law attorney can sign a guardianship contract and be entrusted with these decisions. An organization can function as guardian in some cases, as well.

A guardian may have full authority over legal, medical and financial decisions of their ward, or the person they are in charge of. In such a comprehensive arrangement, it is presumed that their ward is incapable of making any such decisions. However, what if a person has only partially lost competence? For instance, someone may be unable to comprehend complex financial or legal statements due to dementia but can perfectly well make decisions regarding their health. Since such situations are fairly typical, there is room within legislature for partial guardianship so that one kind of incompetence would not trigger a total loss of control over all areas of life.

When should I start thinking of guarantors?

It’s hard to be too careful when planning for one’s future. Though we all wish to age with dignity, remaining strong, healthy and lucid as we grow older, it is impossible to anticipate the future or tell just which affliction we could suffer from, and what other circumstances may arise. If something were to happen, and a guardian was not assigned, your own well-being, as well as that of your loved ones could be greatly compromised. Call now and begin discussing your guardianship options with an elder law attorney today!