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Guardianship is the court process of appointing someone as the guardian to manage the personal or financial affairs of a minor or an incapacitated adult. Once appointed and approved by the Court, the guardian is responsible for those matters which are assigned in the guardianship. The guardian may be responsible for making decisions related to finances, healthcare, education, or even the personal affairs of the minor or incapacitated adult.
Uncontested Guardianship vs. Contested Guardianship
The team at Sessa & Dorsey represents clients in Uncontested Guardianship cases. An uncontested guardianship means that no one is opposing the appointment of the guardian for the minor child or the incapacitated adult. All of the interested parties of the person have been notified and agree to the appointed guardian.
A contested guardianship occurs when there is disagreement about the guardianship. The disagreement may be about who should be the person’s guardian. Sometimes there is a dispute as to whether the individual’s status reaches the legal standard of incapacitation for a guardian to be appointed.
Guardianship hearings—whether they are contested or uncontested—are serious matters and require the guidance of an experienced guardianship attorney. After all, the decisions made in a guardianship hearing will remove the person’s ability to handle their personal or financial affairs on their own.
Uncontested Guardianships for Disabled Children
Uncontested guardianships are often used for families with disabled children who become adults but need their parents to continue to make decisions for them. For example, when a child with special needs turns age 18, absent a guardianship, the child’s parents may no longer have access to their child’s medical information. A guardianship will give their parents access to their medical records and would also allow the parents to continue to make medical decisions.
Uncontested Guardianships for Incapacitated Adults
Uncontested guardianships may also occur when an elderly person becomes incapacitated and can no longer handle their affairs. For example, when an elderly person develops dementia, he or she may need a guardian to pay bills or to make medical decisions.
Guardianship vs. Financial Power Of Attorney and Advance Directive
A Financial Power of Attorney is a legal document in which you give a person (your Attorney-In-Fact) the authority to handle financial matters on your behalf. Your financial matters can include—but are not limited to—access and authority over your bank accounts, investments, real estate, retirement accounts, life insurance policies, and other assets. A Financial Power of Attorney can also allow a person to pay your bills and file your income tax returns. A Financial Power of Attorney is an important estate planning tool because, should you become incapacitated or disabled and no longer able to make decisions for yourself, you will have the documents in place for your Attorney-In-Fact to take over your affairs.
Similarly, in a Designation of Health Care Agent document, you give a person the power to make medical decisions for you if you ever become incapacitated.
The main difference between a Financial Power of Attorney or Designation of Health Care Agent and Guardianship is that you designate your Attorney-In-Fact (or Health Care Agent) before ever becoming incapacitated. As a result, it is a forward-thinking legal document that helps you avoid the sometimes lengthy and expensive process of a guardianship proceeding, should you become incapacitated
Please note that minors cannot have a Financial Power of Attorney or Designation of Health Care Agent document. These legal documents are strictly for adults above the age of 18 years old. We recommend that all young adult children (and especially college-age children who may be out of state) sign both a Financial Power of Attorney and a Designation of Health Care Agent document to give their parents the powers they need to help their children
Lastly, a person must have the mental capacity to understand these documents to implement them. Accordingly, in some cases, guardianship is necessary when the individual is not able to implement these documents.
At Sessa & Dorsey, we consider the bigger picture at hand and advise our clients on the best estate planning tools for their specific needs and desires. If you have questions about estates and trusts, please contact us at (443) 589-5600.