How To Avoid A Forced Guardianship

By Barry Yeoman, AARP Magazine

Nobody wants to end up in a guardianship, and the best way to prevent it from happening is to prepare ahead. Here are the two most important things you can do now to avoid having your life and finances put in the hands of strangers:

1. Select someone you trust to make health care decisions for you if you couldn't—a family member, friend, or legal representative. Then outline your wishes in a legal document called a Health Care Durable Power of Attorney or health care proxy. That person will make sure your wishes are followed.

2. Designate someone to manage your finances if you're not able with a financial Durable Power of Attorney, a specific document prepared by a lawyer, outlining what you want that person to do for you and when.

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In an ideal world Mr. Barry Yeoman is correct and these prior directives should avoid a guardianship and a lot of people out there think they are protected by having a Trust, Will and POA and Health Surrogate planning documents. However in the real world having these does not necessarily means the court is going to acknowledge this documents. In the case of Clara G. Fernandez she had very detailed planned these documents and all were in order.

In other words these documents are only valid in a perfect environment, when certain (not that unusual) circumstances occur which is in a lot of cases then these documents become a moot point.

I think attorneys ought to disclose when they charge people hefty fees to draw up these documents they should be totally upfront and provide disclosures to the effect that in the event that un usual circumstances occur or in the event event that one of the members of the family has to litigate to bring assets back into the trust because they were improperly taken, then these prior planning documents become null and void. And the wishes of the testator are to be bulldozed over with no consequence and little remedy to afflicted families.

Any feedback to this article by attorneys and I know we have quite a few readers out there that pratice law , please let us hear from you on this subject.