All adults, but particularly older adults, should plan ahead in the event they need a legal guardian to step in to make decisions for them. Formalizing your wishes while you are still able protects you against the need for a state-appointed guardian and helps protect against fraud and deceptive practices that can lead to disaster for you and your loved ones.
Power of Attorney protects you and your estate
What is a legal guardian?
A legal guardian is a designee who is authorized to (and responsible for) making decisions for a person who is unable to do so for themselves. A guardian’s authority derives from a legal document called a power of attorney (POA), which formally designates the guardian and defines the scope of their role. People designate a guardian (or guardians) for a variety of reasons; consequently, there are different types of powers of attorney, including POAs that deal with financial decisions and those that handle healthcare and end-of-life matters.
Without the proper documents in place, the court will appoint a guardian for a person who is incapable of making decisions. While most of these court-appointed guardians are well-intentioned, some are not. Intentions aside, court-appointed guardians are never equal replacements for someone who knew the individual before their incapacity and had spoken to them directly about their wishes.
State laws matter
State laws govern the appointment of guardians and should be a starting point for anyone’s research. In Ohio, for example, the state’s attorney general publishes a “Guardianship Guide” outlining steps and providing advice for Ohioans. Advocacy organizations, such as AARP, provide resource materials on the local, state, and national levels. Elder law attorneys, who take a holistic approach towards not just estate planning but also all end-of-life planning, can be invaluable partners in executing, filing, and administering guardianship documentation.
Part of a well-rounded approach
Keep in mind, a will is not enough. A will outlines the distribution of a person’s assets after their death, but an appropriate POA will protect a person while they are still alive. Also, a blanket POA that names a guardian for all decisions might not be sufficient enough for a particular state’s requirements or accurately address a person’s wishes. Grandma might want her daughter (a long-time business manager) to make financial decisions on her behalf but prefers that her grandson (a physician) oversee healthcare decisions. Well-drafted POAs can make all this clear, not only for the court but also for the guardians themselves, who are dealing with the emotional and mental toll of caring for someone else.
Designating a guardian starts with a conversation. Granted, a difficult one—but hopefully one that ends with a person being cared for in a respectful, legal, and ethical way, by a trusted guardian who knows the person and will faithfully act on their behalf.
