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.
Please visit my website or contact me directly if you would like any more
information regarding asset protection or estate planning, or would like
a copy of my best-selling books on Asset Protection (complimentary if
you mention this Blog).
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