We all dread the day when a parent or other loved one becomes too ill or injured to care for themselves. While it doesn’t happen to everyone, it does happen. But, if that time has come for you, and a loved one needs help handling their own affairs, it may be time to consider a guardianship. Understanding what that means exactly can make the decision much easier. Here is what you need to know.
#1 – How a guardianship is established
The process of creating a guardianship requires court intervention. During the court proceeding, someone will be appointed to serve as guardian of your loved one. The guardian will be given the power, by the court, to take control of your loved one’s finances and personal affairs. Depending on the specific needs of the ward (the person who needs a guardian), the appointed guardian can handle either or both. While the court will always have broad discretion in deciding who to appoint as guardian, the most common choices are spouses, adult children, and siblings.
#2 – How incapacity is determined by the court
The first step to establishing a guardianship is determining whether your loved one is actually incapacitated. The court will make this decision. The term “incapacity” is legally defined as the inability to make appropriate decisions on your own. Incapacity can be temporary or permanent and can stem from cognitive impairment, disability, chronic drug or alcohol use or many other medical or health conditions. Age and senility are also very common causes of incapacity.
#3 – The duties of a Missouri guardian
The primary duty of a guardian in Missouri is to manage the welfare and safety of the ward. This duty encompasses protecting not only the ward’s assets but also the ward himself or herself. One important thing to remember is that the guardian’s actions must always be in the best interest of the ward. To make sure that is the case, the guardian is required to file a petition with the court in order to obtain permission to make certain important decisions. Guardians are also required to make reports to the court annually regarding the status of both the ward and the ward’s affairs.
#4 – Some advantages of guardianship
There are numerous advantages to having a guardianship in place for your loved one. One major advantage is the court supervision, which provides invaluable oversight and protection from a breach of fiduciary duty or mismanagement of funds. Another significant advantage is that a guardian appointed by the court possesses the type of authority necessary when dealing with hesitant third-parties.
#5 – Some disadvantages of guardianship
While being able to rely on the court’s supervision to protect your loved ones is certainly an advantage, it comes at a price – literally. The court’s continuous participation in the guardianship makes the process more expensive than some other alternatives. Another aspect of guardianships that many find discomforting is the fact that the proceedings are open to the public. Probably the least favorable aspect of a guardianship is the loss of autonomy. However, there are some good alternatives to guardianships which can be much less restrictive and costly.
#6 – Possible alternatives to guardianship
A durable power of attorney is one alternative that is less restrictive and less expensive. A durable power of attorney can be created by an estate planning attorney to meet the specific needs of your loved one, which is great. Other options include revocable living trusts, joint bank accounts, and advance directives. Using these other estate planning tools will still allow you to protect your loved one, but without the need of having them declared incompetent or incapacitated.
When should you consider a guardianship?
In many cases, the first sign of incapacity or mental impairment is significant loss of memory. For example, if your grandfather has been getting lost or seems disoriented, or your mother keeps forgetting she has food cooking on the stove or forgets to take her medicine regularly, it may be time to consider incapacity planning, such as a guardianship. It is always best to address these issues early before your loved one becomes a danger to themselves or others. While the preferred plan would be to take care of your loved one without the need for a guardianship, not all families are capable of doing that. Discuss your situation with an estate planning attorney so you can decide what’s best.
Join us for a free workshop! If you have questions regarding guardianships, or any other estate planning matters, contact Gaughan & Connealy for a consultation either online or by calling us at (913) 262-2000.