July 14, 2017
Our estate planning attorneys consistently help our clients in avoiding guardianship. Through a Durable Power of Attorney and a Power of Attorney for Health Care, our lawyers craft estate plans that almost always avoid the need for a guardianship. To help our clients and other understand this process, we are sharing a detailed overview of avoiding guardianship. We’ll discuss the importance of power of attorneys.
Guardianship: A Basic Definition
Guardianship is a court proceeding requiring court oversight and court hearings before a judge. These proceedings and hearings take place in the county of residence. For our local clients that means the Kenosha County Courthouse for residents of Kenosha, Wisconsin. For residents of Racine, Wisconsin, the proceedings and hearings will be held at the Racine County Courthouse.
A judge determines if a person is able to make financial or health care decisions, based upon a doctor’s testimony. If the judge determines that a person, called a “ward”, is not able to make and communicate decisions, the judge will decide who is an appropriate adult to make financial and health care decisions for the ward.
The reasons that a person may not be able to make his or her own decisions due to incapacity, include events such as a car accident, a fall, Alzheimer’s, dementia, a stoke, Parkinson’s, or other brain injury or disease that makes communication or understanding difficult.
What is the Guardianship Process?
While the guardianship process is too extensive to cover in-depth in this article, we’ll list the basics. Generally, the guardian process consists of the following steps:
- Arranging for an attorney to represent the person asking the court for guardianship;
- Preparation of court documents including a detailed Petition for Guardianship, related court documents, and court order forms;
- The appointment of a doctor, psychologist or psychiatrist to examine and determine the amount and type of incapacity that exists, including document preparation for the court hearing;
- A court appointed Guardian ad Litem – a second attorney to provide an unbiased view of the guardianship to the judge;
- At least one court hearing for the judge to examine and review all of the information and testimony, and to decide if guardianship is required, and if so, to determine a suitable guardian;
- Setting up guardianship accounts at financial institutions; and
- Completion of court forms inventorying the assets of the ward and accounting for expense and income of the ward on a yearly basis.
Why Avoid Guardianship?
The guardianship process is an involved and costly process. It requires a lot of time and effort by both family members and attorney to see the process through. It often takes several months – and involves one or more expensive court hearings.
Avoiding guardianship will reduce costs, family stress and work levels for all involved.
Be in Control of Who Decides What You Want
When drafting Power of Attorney documents for our clients, we discuss who they want in charge of finances and health care if our clients are unable to handle these decisions on their own. We also discuss details such as what type of artificial equipment should be used – or not used – if the event of incapacitation.
During a guardianship proceeding, a judge will decide who is the best person to put in charge of a person’s finances and health care. This can result in the appointment of family or friends who are not appropriate decision makers. That is, a judge might appoint someone that will not make decisions as you would want.
Perhaps more importantly, decisions about the continued use of artificial equipment and other significant decisions, will be made by the judge. The judge does not know you – yet, he or she will decide what is best for you based upon the information presented at a court hearing.
Of course, major decision will require additional court hearings, costs and attorney fees.
Avoiding Family Disputes
Guardianships can cause family disagreements about who should to take care of an incapacitated person’s finances and health care needs. These disputes often play out in court hearing, with multiple attorneys and doctors involved. These family disputes can result in additional fees and costs, and a family that no longer gets along.
Through the use of Power of Attorney, you can appoint who you want in charge and give specific directions, for example, on the use of artificial equipment and other decisions. You can do this in advance of becoming incapacitated.
Imagine the gift to your family when they can avoid court, avoid disputes about what you wanted, and avoid the associated time and headaches involved in guardianships. Your family will know that they are carrying out your desires as set forth in the Power of Attorney documents.
Guardianships require ongoing court involvement and court paperwork. Most of that paperwork will need to be prepared or reviewed by an attorney or doctor. These include such items as an inventory of all of your assets, a yearly accounting of expenses and income. The guardianship process includes multiple court hearings to accomplish simpler items such as a necessary house sale. In a nutshell, typical costs for a guardianship include:
- Doctor, psychologist or physiatrist fees to examine the ward, and to complete court documents;
- Court fees based upon the value of a ward’s assets;
- Attorney fees to manage the guardianship appointment, and on-going fees to help with court approval for house sales and court forms for accounting and inventory preparation.
All of these added costs and expenses can normally be avoided in advance of incapacity, by the preparation of Power of Attorney documents by a competent attorney.
Power of Attorneys – a Necessity to Avoiding Guardianship
When avoiding guardianship, part of your estate plan should include both a Durable Power of Attorney and a WisconsinPower of Attorney for Health Care. Through these documents, our attorneys address who will be in charge of your finances and health care in the event that you are not able to perform decisions due to incapacity.
Power of Attorney documents must crafted sooner rather than later. They can only be signed when you are fully competent. If a client can no longer make his or her own decisions, we cannot deliver Power of Attorney.
Durable Power of Attorney (Durable POA)
We previously provided information on the importance of Durable Power of Attorneys and Power of Attorneys for Health Care, and their importance to a well-rounded estate plan. We recommend reading that article for a more detailed discussion of the issues there.
The bottom line is that if you don’t have a valid Durable Power of Attorney in place before you become unable to handle your finances, a court appointed guardianship will be required.
Power of Attorney for Health Care (Advanced Medical Directive)
We have also previously explored why a Wisconsin based Power of Attorney for Health Care is such an important document. Please review that article in connection with this immediate discussion of avoiding guardianships.
The quick summary is that if you do not have a Power of Attorney for Heath Care in place before becoming incapacitated, a judge will appoint a guardian to make health care decisions for you.
We Can Help You Avoid Guardianship
At Wokwicz Law Offices, we want you to have at least a basic estate plan in place. Our estate planning lawyers are available to walk you through the process.We invite you to contact us directly to discuss your needs and questions.