Incapacity Planning: Guardianship

Estate planning is the managing and passing of your assets through the preparation of documents and re-titling of assets. The process of linking asset protection with estate planning is called integrated estate planning and they work together to form a comprehensive plan. Having one without the other is incomplete. Every person should have an estate plan so that they can control who gets their assets at death. In addition, the estate plan covers an individual should he or she become incapacitated.

Guardianship is always the last resort for an incapacitated person but the person or person(s) you choose as your guardian serve a very important role. The guardian of your person is a person appointed by the Court to be in charge of your physical well-being; where you live, your daily activities, socialization, and medical care. The guardian of your property is the person who is in charge of your finances. The guardian roles can be divided if you feel that it is in your best interests, but as a practical matter, it is better to appoint one person for both.

Guardians must account to the court and are governed by the court. Therefore, there are more restrictions on guardians that are not usually imposed upon agents and health care surrogates, but the court will generally honor your request. If a person has a properly drafted and executed durable power of attorney and health care surrogate then a guardianship may be avoided; however, if a guardianship is necessary then the court may still limit the powers of the guardian subject to the existing power of attorney and/or health care surrogate.

Finally, you may also appoint a guardian for minor children. Most people know that you can name a guardian in your will, in case you die with minor children, but many people don’t think about what will happen if you become incapacitated. In order to accomplish this, you may either name the guardians in your will or you can have a separate document—naming guardians for minors. We recommend both.

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