How does the implementation of estate planning prevent the need for a guardianship?
Essentially, estate planning documents will typically enable you to name a person to act on your behalf in the event of incapacity. There are two very specific documents that pretty much go to this point. The first document would be a durable power of attorney. A properly drafted durable power of attorney will not only name a primary agent to act on your behalf, but it will also name a successor agent to act on your behalf in the event that the primary agent either becomes incapacitated themselves or should predecease you or be unable to act. That’s really important. If you do have a power of attorney, make sure that you take a look at it and do ensure that it does have a provision for a successor agent.
Essentially, a guardianship will need to be established for a person in the event that they are incapacitated and that they do not have any known advanced directives, such as a power of attorney whereby they have named somebody previous to their incapacity to act on their behalf. That’s why a lot of times a guardianship is necessary for someone that simply doesn’t have a power of attorney.
I’ve also encountered situations where a person may have a power of attorney but unfortunately that power of attorney did not name a successor agent and the primary agent has predeceased the actual principal, i.e. the person needing somebody to act on their behalf. That’s why it’s really important that you execute estate planning documents early in life, that way you already have that set up in the event that something should happen.
The other document that I was referencing is called a “Declaration of Pre-Need Guardian.” That document is a document that you execute while you have capacity, which essentially allows you to name the person that you would like to act on your behalf in the event that a guardianship of your person, property, or both, is necessary to protect your best interest. That is also a part of our estate planning documents here at the law firm of Waller and Mitchell.
If you have any questions regarding the implementation of estate planning documents or you would like to have your current estate planning documents reviewed please give me call here at the law firm of Waller and Mitchell at 727-847-2288.