Guardianships are administered and controlled by the Probate Court. Almost all records are public and open for inspection. When someone applies for a Guardianship over an adult that is physically and/or mentally incapacitated, the process requires a Physician’s Statement, Court Investigator’s Report and other filings. These could create embarrassment for the alleged incompetent and/or family.
With a Guardianship, the Probate process continues indefinitely until the incompetent is restored to competency or dies. Therefore, this process involves continuing Probate expense, possibly bond premiums, fiduciary and attorney fees. And, since this is a public record, all financial details surrounding the incompetent are open to public scrutiny.
This leads to the next question, which is how to avoid a Guardianship. The simple and most effective way is to provide a trusted family member or friend with a Durable Power of Attorney. This is different from a regular Power of Attorney because a regular Power of Attorney ceases to have legal effect upon the individual becoming incapacitated. Therefore it is critical to consider giving the correct type of Power of Attorney. To help minimize or avoid probate it is best to provide someone you trust with a Durable Power of Attorney.
Should a guardianship become necessary, an individual may also nominate a Guardian for themselves in their Power of Attorney.
In addition to having a Durable Power of Attorney in order to help avoid probate, it is essential to consider providing a Durable Power of Attorney for Health care decision making.
Finally, another way to avoid Probate or Guardianship is to have a Living Trust. However, the most common mistake people make with a Living Trust is the failure to fund their Trust. If a Trust is properly funded, it can minimize the risk associated with a Guardianship.