“You will have to go court”. As a lawyer, I understand this is the last thing someone wants to hear. Even with strong legal counsel, being involved in a court case can take a lot of time and energy. But unfortunately, many people find themselves having to apply to the court for guardianship of a parent because estate planning was not in place for incapacitation.
The typical conversation goes like this:
Child: “I need a power of attorney for my parent to take care of them”
Lawyer: “they will need to seek counsel to get a power of attorney and give that right to you”
Child: “they can’t, they get confused and aren’t sure what is going on all the time”
Lawyer: “if that is the case, it is too late. You will have to go to court and apply for guardianship”
Springing or Durable Power of Attorney
A springing power of attorney is a document for one individual to grant certain powers to another that only become effective if a future incapacitation occurs.
A durable power of attorney is a document for one individual to grant certain powers to another and the powers survive a future incapacitation of the granting individual.
Both a springing and durable power of attorney are strong planning tools and, in most cases, eliminate the need for a guardianship appointment.
Any power of attorney requires the individual executing the document be of sound mind. When these are not executed, loved ones are forced to seek a guardianship to care for the individual.
Guardianship
Guardianship is when a court determines it is in the best interest of an individual for someone else to make decisions for that person and act on their behalf. If you believe a loved one is no longer able to make decisions for themselves or care for themselves physically or financially you may need to file for guardianship.
The process requires the proper filing of paperwork, the appointment of a guardian-ad-litem, an investigation, and a hearing, among other items. This is why many try to avoid such a process. Most importantly, the burden of proof is on the petitioner (person filing the paperwork) to prove the incompetency. Typically the person filing is asking to be appointed guardian, so you will need to prove you are the appropriate person to serve as guardian as well. The court has discretion for a limited guardianship but generally, they will look at, guardian of the person (physical care and well-being), guardian of the estate (handling financial matters), or general guardian (both physical and financial).
You must be able to prove to the court in what ways the individual cannot take care of themselves or an inability to handle their financial matters and show how it rises to the level of stripping away the person’s rights. You must present evidence such as testimony or medical records. Additionally, there are procedural items that must be met, such as the proper jurisdiction or venue of the court.
If the court determines the need for a guardian, you then need to show why you are an appropriate guardian. If appointed guardian of the estate or general guardian, you will need to post a bond and submit reports to the court about how the finances are being handled.
This can all be a lot to handle and highlights the need for proper planning. But, if this is the only option left, for the benefit of your loved one you should seek guardianship.
Other planning tools to consider: Health Care Power of Attorney, Special Needs Trusts, Living Will
Revolution Law Group is located in Greensboro, NC serving individuals and small businesses throughout the Triad and surrounding areas. To contact us please visit www.revolution.law or call 336-333-7907.
The information included here is for informational purposes only, is not exhaustive of all considerations when creating documents, is not intended to be legal advice and should not be relied upon for that purpose. We strongly recommend you consult with an attorney and do not attempt to create your own documents.