Power of Attorney

Guardianship

The title given to a person court-appointed to manage your physical care, learn here about why you may want to avoid this situation by using a power of attorney.

Guardianship is what happens if you become incapacitated and you do not have a power of attorney or living will available. This is when the court will step in and appoint someone to be your guardian.

The first step in achieving guardianship is that someone has to file a petition to the court based on your incompetence. The court will then decide two things:

• If they believe you are capable of making informed decisions about your personal affairs and finances, and

• Whether you need continuous care and supervision.

If the court rules that you do need a guardian, they will then appoint one to you. While you don’t technically get to choose who your guardian will be in this situation, you do have a right to voice your opinion and tell the judge who you would or would not like your guardian to be.

If a judge determines that you need a guardian and you disagree, you have a right to obtain an attorney, or use a court-appointed attorney, to try to prove your case. If you are appointed a guardian, there will most likely be a petition filed for conservatorship as well. This person would also be chosen by the courts, and would handle the financial part of your estate.

To avoid the above situation, you can create a power of attorney and conservatorship long before it is ever necessary. You can simply include this information in your living trust, and the courts will not have a decision in who you chose to handle your estate and your well-being.