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How to Use Estate Planning to Avoid a Guardianship Proceeding when an Elderly Parent is Involved

How to Use Estate Planning to Avoid a Guardianship Proceeding when an Elderly Parent is Involved

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By Jeff Wagoner, W M Law President
Recently I had a potential client contact me about getting a guardianship for her mother whose mental state was beginning to deteriorate.  The daughter was concerned that her mother’s failing mental health would lead her to forget to pay the mortgage loan on her house or to pay the insurance or make other financial mistakes.  So, the daughter thought the best option was to obtain a guardianship over her mother.  But, a guardianship is a pretty drastic measure.  It involves a hearing to convince a judge that the guardianship is necessary.  It also requires annual reporting.  Sometimes a bond is required.  So, how can we avoid that?
In this case, the daughter was worried also because the mother was getting belligerent and uncooperative with her.  I recommended that while her mother is still mentally competent (so it needed to be done right away) that we should do a an estate plan, which includes a Financial Power of Attorney and a Healthcare Power of Attorney.  With these two documents, the daughter could accomplish nearly everything that a guardianship order would allow her to do.  With regard to the mother’s becoming belligerent, it is true that a guardianship will give the daughter more power to force her mother into a nursing home, but it won’t stop the mother from becoming belligerent and difficult to deal with.
Even with a guardianship, you can’t realistically force a parent to be somewhere they don’t want to be – if you want things to go smoothly, you still need to convince the parent that the facility is the right place for them to be.  I’ve seen plenty of guardianship where the facility expels an unruly, belligerent resident and then it is back into the guardian’s hands to deal with that parent.  The point being, a guardianship does not mean everything is going to be smooth sailing.  That’s not to say that a guardianship is never required, you just shouldn’t leap to the conclusion that it is always the best way to force your will onto an elderly family member.
So, in the case above, where the concern was primarily for the mother’s inability to make good financial and healthcare decisions, my recommendation was for an estate plan that included (like most good ones do) a financial power of attorney and a healthcare power of attorney.  Hopefully, we can convince the mother to sign those two voluntary documents and that’s all that will ever be needed.  But, if not, we can always go down the path of a guardianship later.

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