Guardianships: How to Avoid Them at All Costs

Photo courtesy of Lotte Meijer

When it comes to Guardianships, there is one thing that is pretty much universal: Nobody wants a Guardian appointed over them. They would rather avoid a Guardianship at all costs!

If a Probate Court Judge appoints a Guardian for you, you become a legal "ward" and lose all rights to make decisions for yourself. That stinks! Sometimes a Guardianship is necessary though because the ward has lost the ability to take care of himself and his property and does not have the right legal documents in place. Moderate to severe dementia, brain injuries, and Alzheimer's Disease are a few of the common reasons why someone may need a Guardian.

Even if you develop Alzheimer's or dementia later in life, however, it doesn't mean you have to have a Guardian. Here are 5 legal documents which can help you avoid a Guardianship:

  1. Living Trust. A Revocable Living Trust can do many things, including avoid a Guardianship. The Trust must be set up to provide for you when you are incapacitated. The Trust must also name at least one Successor Trustee to take over for you if you can no longer serve as Trustee for any reason, including incapacity.
  2. General Durable Power of Attorney. This Power of Attorney must specifically state that the Power of Attorney "shall not be affected by my disability." Your fiduciary (or "agent") can help you with your finances if you become ill or incompetent. In addition, a General Durable Power of Attorney does not take away your legal rights, like a Guardianship does.
  3. Health Care Power of Attorney. Your agent will make your health care decisions for you if you become unable to do so.
  4. Living Will. Your Living Will tells your doctor and family what your wishes are concerning end-of-life decisions.
  5. HIPAA Release. This medical authorization allows the persons named to have access to your personal medical records.

It is extremely important to put these documents into place long before there is any question about your competency. And don't forget a Last Will and Testament. It doesn't necessarily avoid a Guardianship because it doesn't take affect until after your death. However, it is a very important document in your estate plan!

Maria Shinn has served as Guardian for minors and adult wards and has helped many families navigate the Guardianship process. Contact Maria if you have any questions about Guardianships in Ohio.