In the United States, we enjoy a relatively long average life expectancy due in large part to advances in science and medicine. In fact, we can expect to live, on average, almost twice as long as our ancestors did just a century ago. Despite living longer, the natural aging process will still cause physical and mental deterioration at some point. For some, diseases such as Alzheimer’s may hasten that deterioration process. If you reach a point at which it is dangerous for you to continue caring for yourself and/or making decisions for yourself, a loved one may be forced to petition for guardianship over you unless you planned ahead. If you wish to avoid having a Guardian appointed, the Beverly probate attorneys at DeBruyckere Law Offices discuss some steps you can take within your estate plan now.
What Is Guardianship?
Guardianship is a legal process that grants the Guardian authority to care for and make decisions on behalf of an incapacitated person. An incapacitated person is someone with a clinically diagnosed condition that leaves them unable to make or communicate decisions affecting their physical health, safety, or self-care. To gain guardianship over someone, a petition must be filed with the appropriate court and the request evaluated by a judge after a hearing.
Why Is Avoiding Guardianship Desirable?
If you are the subject of a guardianship petition, referred to as the “ward,” you do have the right to object to the appointment of a Guardian and/or the choice of Guardian. Once a Guardian is appointed, however, that person (or agency) will have a considerable amount of authority over you and your life. Over the course o your lifetime you will have made millions of decisions for yourself. Most people do not like the idea of turning over the decision-making authority to someone else; however, the reality is that at some point it may be necessary. By planning ahead, you can choose to whom you hand over that authority instead of letting a court decide through a guardianship petition.
What Can You Do Now to Avoid Guardianship Later?
There are several estate planning tools and strategies that can be incorporated into your overall estate plan that can help you avoid becoming the subject of a guardianship petition later on in your life, including:
- Power of attorney – a Power of Attorney (POA) is a legal document that allow you to grant someone of your choosing (your “Agent”) the authority to act on your behalf in legal matters. A POA can be general or limited. With a general POA your Agent has almost unfettered authority to act on your behalf whereas with a Limited POA the Agent only has the authority specifically enumerated in the POA document. If the POA is a durable POA the authority granted to your Agent will survive your incapacity.
- Advance directives – An advance directive is a written statement of a person’s wishes regarding medical treatment that is created and executed to ensure those wishes are carried out should the person be unable to communicate them to a doctor. Massachusetts only recognizes one type of advanced directive known as a Massachusetts Health Care Proxy. This type of advance directive allows you to appoint someone as your Agent to make decisions for you in the event you are unable to make them yourself because of your incapacity at some point in the future. Your Agent will have the authority to do things such as consent, refuse to consent, or withdraw consent to medical treatment on your behalf.
- Revocable living trust — a revocable living trust is an excellent incapacity planning tool because it allows you to appoint yourself as the Trustee of the trust and appoint someone of your choosing as the Successor Trustee. You then transfer assets into and out of the trust throughout your lifetime, maintaining the ability to control and manage those assets as the Trustee. If you become incapacitated, your designated Successor Trustee takes over control of those assets automatically, without the need for court intervention.
Contact Beverly Probate Attorneys
For more information, please join us for one of our upcoming FREE seminars. If you have additional questions about avoiding guardianship in New Hampshire or Massachusetts, contact an estate planning lawyer at DeBruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.
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