Guardianship can usually be avoided with a properly drafted Medical Power of Attorney and a properly drafted Durable Power of Attorney, assuming the agents are well-informed and competent and act in good faith and in the best interest of the person. There are, however, situations in which a guardian of the person is needed to decide where the person will live because the person needs memory care or skilled nursing and refuses to enter a facility. There are also situations in which the person is impoverishing himself by spending or gifting and must be deprived of access to his own money.
But before filing a guardianship application, be practical.
Presume that guardianship is not needed.
Reasons – clearly identify the reasons for concern.
Ask if a triggering concern may be caused by temporary or reversible conditions.
Community – determine whether concerns can be addressed by connecting the individual to family or community resources and making accommodations.
Team – ask the person whether they already have developed a team to assist them in making decisions.
Identify abilities, areas of strength, as well as challenges in decision-making.
Clarify exactly what is needed to protect the person and whether this could change.
Appoint an agent under a Medical Power of Attorney or Durable Power of Attorney if there is none and the person is able to appoint someone. Help them appoint supporters to access information and advise them.
Limit any guardianship application to what is truly necessary after trying various supports and services.
Elder law attorney, Terry Garrett, CELA, is a member of the National Academy of Elder Law Attorneys and is an Approved Guardianship Attorney. She assists people in elder law, estate and special needs planning, guardianship and settling estates. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.
