What Happens When a Person Can’t Take Care of Themselves
Incapacitated Persons – Minors and Disabled
Minors and people who cannot take care of themselves often need to have a guardian appointed over them so somebody will be able to do what they cannot do for themselves. Often this involves elderly people and people with disabilities. In order to establish a guardianship over another person, it is necessary to petition a court to request that the guardianship relationship be established. It will be necessary to prove to the court the extent to which a person cannot care for themselves. Guardianships can be all encompassing, where the guardian has the right to make essentially all decisions concerning the person. Or, guardianships can be limited to just those issues where the person lacks ability. The establishment of one or the other depends mostly on the individuals abilities.
Guardian of the Estate and Guardian of the Person
The other type of guardian is the guardian of the person. This guardian is authorized to make health and care decisions for the incapacitated person.
The differences between the two are significant. Even though the same person may serve as guardian of both the estate and the person, this is not necessary. It may be that, of the individuals available to serve as guardian, there is one person who would be better at one or the other and vise versa. Under these circumstances, appointing two different people may be appropriate.
Are There Ways to Plan for or Avoid the Need for Guardianship and Why is This Preferable?
Yes, it is possible to plan for a guardianship. One thing that can be done is the nomination of a guardian in case the needs arises. This involves designating who a person would want to serve as his or her guardian, in case that person becomes incapacitated. This can apply to adults, who are concerned about who will care for them as they age. Additionally, parents of minor children can make such a nomination on behalf of their minor children. Then if both parents were to die, their wishes about who will care for their minor children can be presented to a court.
The advantage to making a nomination of guardian before the need arises is that the persons wishes can be made known to the court, even though they are no longer able to do so at the time. Another advantage is that it is possible to designate individuals who cannot be appointed as a guardian, in case a person would have issues with a particular family member or other person managing his or her affairs.
Additionally, it is possible that a guardianship of an estate may be avoided all together by establishing appropriate trusts. The trust would designate the incapacitated person as the beneficiary and a trustee to manage the trust. In many ways the trustee takes the place of the guardian. The significant advantage to this is ability of the trustee to make decisions and act without court approval. Guardianships, on the other hand, require close court supervision and the guardian cannot act without court approval in most situations. The guardianship is therefore significantly more costly and more time consuming.