Many people are actually incapacitated and unable to make their own decisions, but never have to go through the guardianship process. Having appropriate legal documents in place avoid many guardianships. These legal documents may include trusts, durable powers of attorney and designations of health care surrogate. Most types of trusts do the best job of guardianship avoidance because they take the grantor out of harm’s way when judgment is lacking.
While durable powers of attorney are helpful, they give the agent concurrent authority, leaving the incapacitated person vulnerable both to exploitation and his or her own poor judgment. Even if no legal documents exist and a person is incapable of understanding and thus executing documents, a careful review of the way assets are titled may prove that guardianship may not be necessary.
Some guardianships are necessary, even when legal documents exist, when the incapacitated person rejects efforts to provide assistance and is neglecting his or her own care. The disease of dementia can slowly rob a person of the judgment necessary to live independently.
If discussions about alternative living situations are delayed until the judgment is completely lacking, the incapacitated person cannot take part in decisions about care when care is needed.
Assistance to prevent self-neglect include several options, but are largely driven by finances and the ability for family to assist. Family members may be willing to provide help, but the elder may not want this type of help because he or she may not wish to burden the family with that responsibility. Other times family may not be able to provide the assistance needed due to jobs or other family demands but the elder may have assumed that family would provide all needed care.
Home care by an outside agency can certainly prevent self-neglect but extensive home care is an expensive proposition. Some families try to cut that cost by hiring individuals rather than agencies, but this decision carries a risk of exploitation, unrecoverable theft and tax risks. Other options include care in an assisted living community or (when needed) memory care. An ongoing discussion about alternatives to living alone while a dementia process is in the early stages may prevent a guardianship necessary due to self-neglect.
Guardianships are sometimes necessary because of exploitation or scams. If a senior has named a fiduciary who is not acting in his best interest, a guardianship can rectify the situation. However, guardianship should not be used just because one of the children disagrees with the choice of fiduciary that the senior made. Seniors are often targeted by sweepstakes and scams. Seniors who have financial worries are particularly vulnerable to scams. When efforts to dissuade further participation in scams fails, a guardianship can stop the abuse.
The process of guardianship can be hard on the senior as well as the family. The court appoints an attorney to represent the alleged incapacitated person as well as an examining committee. The committee visits with the alleged incapacitated person and issues a report. The attorney explains the process to the alleged incapacitated person (to the extent possible) and represents the incapacitated person at a hearing. The process is expensive. After the adjudication of incapacity, the guardian has ongoing court responsibilities and is limited in the actions that can be taken without a court order.
Guardianships are absolutely necessary in situations where no alternatives exist to prevent exploitation or neglect. However, planning early in the aging process can be invaluable in avoiding the hardship of a guardianship.
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Issues for Elders: Guardianship should only be sought as a last resort