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Legal Strategies to Avoid Guardianship


As senior citizens age, the likelihood increases that they will become physically or mentally incapacitated at some point. Hopefully, people in such a situation have family members who step in and help keep their affairs in order. However, that is not always the case. If no one steps in to help, courts may be petitioned to appoint someone–a guardian–to look after that person’s very existence. This often happens when a person becomes incapacitated by illness and can no longer make their own decisions.

What Can I Do?

The most important document for medical situations is the Designation of Health Care Surrogate. A Designation of Health Care Surrogate identifies a person of your choosing- a surrogate- to make decisions for you with regard to your health. Your surrogate can be a family member or a friend. The key is to make sure it is someone you trust. This document can be set up to either take effect immediately, or only upon your incapacity.

A Power of Attorney nominates an attorney-in-fact, or Agent, to act on your behalf with respect to your property and other non-medical issues. Numerous types of transactions are spelled out in this document to eliminate any question as to the broad scope of your Agent’s authority. A “Durable” Power of Attorney states that your attorney-in-fact is authorized to continue to act while you are incapacitated.

Also, consider setting up a trust to administer your assets as you age. Unlike a power of attorney, with a trust, the trustee has sole control of your assets. And there are further legal steps you can take, such as establishing a limited liability company or a family limited partnership to manage your assets.

All of these processes will prevent the need for a court to appoint a guardian for you if you become incapable of managing your own affairs. Those of us who are in our senior years should recognize the increasing chance of the need for someone else to make decisions for us. And those of us who have elderly parents or loved ones should help them think about these issues. The time to plan for potential incapacity is now! Once someone becomes incapacitated, it’s simply too late.

One of the main objectives of Kira Doyle Law is to keep families out of court and out of conflict through thoughtful estate planning. We can help you be proactive in avoiding guardianship and appointing people you trust to take care of you and your affairs if you later become unable to do so. Call our office today at 727-537-6818 to schedule an appointment to begin your estate planning process.