Guardianship is the state-supervised management of the person and/or the property of an individual, who by virtue of age, physical or mental infirmity, has been determined to be incompetent to manage his or her own personal and/or financial affairs.

Guardianship of the person is a degrading, expensive and intrusive process. The alleged incapacitated person is forced to submit to psychiatric and medical evaluations in order for a recommendation to be made to the court of local jurisdiction whether the doctors believe the alleged incapacitated individual can manage his or her own affairs. If a determination of incapacity is made, the alleged incapacitated person becomes a ward of the state and from that day forward a court-appointed guardian will control the life of that ward. Every decision from how much money should be spent on groceries to where the ward should live will be made by the guardian and by the court.

The good news is that you can take actions that will prevent the need for the state to get involved in your personal and financial life. In simple terms, every person has two components to his life that can cause the court to get involved, and those are the person and the property. There are estate planning documents that can direct someone of your choosing to step in and make arrangements for your physical and/or financial care.

Physical Care:

• Health Care Surrogate - this document designates one or more individuals to make health care decisions on your behalf should you be unable to make them for yourself. For example, if you have a stroke and cannot communicate, the surrogate can communicate your wishes to the doctors and make medical decisions and request medical records on your behalf.

Financial Care:

• Springing Durable Power of Attorney - this document designates one ore more individuals who can sign your name to anything (deed, check, insurance policy change of beneficiary form, application for state benefits, etc.) if you are unable to do so for yourself. For example, you have suffered a stroke and are unable to sign your name, your bills need to be paid but only your name is on your checking account. Who can sign your name to the checks? The answer is Nobody, which means the court has to get involved. However, if you had executed a durable power of attorney, then it would "spring" into effect at your disability and allow the person you designated (known as the Attorney-in-Fact) to sign in your place.
• Revocable Trust - this document should be created with you serving as your own Trustee. You put your assets into the trust and run your financial affairs with the same freedom you would enjoy if the assets were in your sole name. However, the trust provides for the contingency that you may not be able to serve as trustee and appoints a line of successor trustees that you have chosen. Upon your disability, the successor trustee takes over and can run your financial affairs.

Guardianship Administration

If a loved one has not done the planning necessary to avoid guardianship, then Mr. Thomas can assist with the guardianship process so that it is as simple as possible for all parties involved and so that it preserves the dignity and honors the wishes of the ward.

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