Guardianship Can Have Its Limits

Advisor note: This article was written in January 2015, however the information is still relevant.

Guardianship is a court-supervised process for appointing a substitute decision maker for someone who is incapable of making decisions for herself. In some cases, it is clear that a guardian is needed -- in the case of, for example, a person in a permanent vegetative state or suffering from severe developmental disabilities. In these situations, a court is not going to have a difficult time determining that the person lacks the capacity to make decisions, and in most cases the court will appoint a guardian with unlimited authority to act on behalf of the incapacitated person.

However, in many cases the alleged incapacitated person is not completely incapable of participating in the decision-making process. For instance, when a person suffers from severe episodic mental illness, there may be times when he is completely lucid and others when he can't function on his own. Likewise, a young adult with developmental disabilities may be able to hold a job and live on her own, but she may be too trusting when it comes to managing her financial affairs, which could lead to people taking advantage of her.

In these cases, a full guardianship may not be appropriate. Instead, most states allow judges to appoint guardians with limited powers that are specifically tailored to the alleged incapacitated person's needs. For example, a court can appoint a guardian to oversee a person's housing and health care, but not to manage the person's bathing, eating, and socialization. Conservators can be appointed to handle the financial affairs of someone who is not good with money, without having any power to manage health care decision making. The options are almost infinite, limited only by the needs of the person under guardianship.

Sometimes, guardianship isn't called for at all. If a person with special needs can execute estate planning documents, she can also sign a durable power of attorney and a health care proxy, which allow someone to assist her with decisions without court involvement. This is important for several reasons. First, it prevents a court from ruling that someone is "incapacitated," which carries with it a stigma and could be hard to undo. Second, it puts the person with special needs in the driver's seat. Third, it is much less expensive and time-consuming.

Full guardianships are important tools to have available when someone is completely incapacitated. But when the lines are not so clear-cut, limited guardianships and conservatorships protect a person with special needs and preserve many of his rights to make decisions on his own.

If you have questions about what type of guardianship may be right for your family, or if you are currently under guardianship and are looking to gain control of your affairs, talk to your special needs planner today.

For an article on the basics of guardianship, click here.

This information is not intended to be a substitute for specific individualized tax, legal or estate planning advice as individual situations will vary. Neither Royal Alliance Associates, Inc., nor its registered representatives or employees, offer tax or legal advice. As with all matters of a tax or legal nature, you should consult with your tax or legal counsel for advice.

Securities and investment advisory services offered through Royal Alliance Associates, Inc. member FINRA/SIPC. Royal Alliance Associates, Inc. is separately owned and other entities and/or marketing names, products or services referenced here are independent of Royal Alliance Associates, Inc. Special needs consulting services are not offered through Royal Alliance Associates, Inc.

Content provided by the Academy of Special Needs Planners, Copyright 2015

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