With the baby boom generation aging, many anticipate further problems with guardianship laws. While guardianships are designed to protect those who have become incapacitated and provide for their financial, medical and everyday needs, some feel the law as it stands now leaves the door wide open for exploitation.
A recent Next Avenue article highlighted the fact that sometimes guardianship proceedings can be the result of family infighting or even strangers looking to exploit an elder in an emergency situation. One story mentions a woman in Nashville, TN, who, after a bad fall that left her with a severe brain injury and without any close relatives, was appointed a guardian. That guardian put her in a home for seriously mentally ill adults, but when she miraculously recovered, she discovered that she had no rights and no good way to fight for her independence.
A ward has no legal rights; not to vote, to marry or divorce, or to make decisions for themselves. A guardian makes all these decisions for the ward: where to live, how to spend their money, the type of health care they receive. It makes it very difficult—almost impossible—for a ward to regain their rights. The article mentions that those who fight for their independence often do so at an outrageous expense.
While many advocates are trying to change the laws and close the loopholes that allow for the exploitation of wards, the best option right now is to plan ahead. Many of those who end up as wards do so because they have not made that decision for themselves and worked with an experienced elder law and estate planning attorney to create a power of attorney.
With a power of attorney, you can determine who would become your guardian in the event of your incapacitation. By working with an attorney now, you have the chance to think about who would be best equipped to help you financially or medically if you should become disabled, and talk to them now about your care preferences. Taking the step to create a power of attorney, speaking with the person who would become your guardian and communicating your wishes to your loved ones and trusted family members now can save you and your family a lot of heartache in a crisis situation.
In fact, at Family Estate Planning Law Group, we advocate a Family Care Meeting where your trusted family members meet to discuss your estate plan with you and your attorney. Typically, the first time they hear about your plan is after your death, and they are left trying to piece together what assets you own, understand from outdated documents what you intended for those assets, and are left to deal with professionals they do not know, have never met, and must trust to guide them through a complex and unfamiliar process.
We work with clients so they have the opportunity to outline their plan to those who will have to execute it, and so their beneficiaries have the opportunity to meet and develop a relationship with their trusted financial professionals. That way, the people you leave behind hear about your wishes directly from you and your team of professionals.
For more about the Family Care Meeting, explore our website and contact us to schedule your consultation today!
Reference: Next Avenue (May 23, 2016) “Guardianship in the US: Protection or Exploitation?”