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Every once in a while, a client will call and say something like: "My mother has Alzheimer's. She is still in her own home, but is unable to care for herself or pay her own bills. Can you help me gain power of attorney for her so that I can take care of her?" And the answer at that point is, "No." Once someone has lost the ability to understand what he or she is doing, the legal capacity to execute a General Power of Attorney is gone. It is at this point that a guardianship proceeding becomes a possibility - and often, a necessity.

If you believe that someone you love is disabled or unable or make rational decisions concerning his or her property, and no General Power of Attorney is in place, call me to discuss the guardianship alternative. The process is not difficult: Doctors' certificates showing disability must be obtained, after which a petition for guardianship must be filed with the circuit court. The court will then appoint an attorney to represent the disabled person and recommend to it whether the appointment of a guardian is in his or her best interests. Once a guardianship is established, the guardian is responsible for filing annual reports with the court, detailing the funds received and expended by the guardian during the preceding year.

A guardianship proceeding, however, does not always involve the issue of disability. Frequently the issue is minority. A minor may require a guardianship if property is left to him, or if he has no living parent who can manage his finances. These proceedings usually go much more quickly than those involving disability. While disability must be proven to the court by doctors' certificates and recommendations of counsel, the only proof required in the case of minority is a birth certificate.

A compelling reason to plan your estate, including a Health Care Power of Attorney and General Power of Attorney, is to avoid the necessity of a guardianship if at all possible, and the inevitable time, expense and emotional trauma involved.

Over the years, I have worked with many clients to determine whether a guardianship is needed and, if so, to set it up and administer it until terminated. Guardians do have legal rights and duties; and I advise them along the way to make sure that everything is done in accordance with the law. Guardianships are sought for many reasons, including:

  • People who become physically or mentally incapacitated need a guardian
  • Minors who have been orphaned need a guardian
  • Minors who have been taken out of their homes by a children's protective agency need a legal guardian

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