A declaration of guardian document allows you to indicate who your guardian would be in the rare scenario that you ever need a guardian. My clients often ask me how guardianship is relevant to them. When we think about guardianships, we mostly think about minor children. Honestly, that’s a great way to understand guardianships. Just like a young mother provides for her 3-year-old son, makes his doctor's appointments, grocery shops for him, plans for his future, and takes care of his day to day, a guardianship appoints someone to fill a similar role for us if we ever need it, at any age.
A guardianship is the legal relationship between a guardian and a ward. A guardian is appointed by a court and requires a court hearing as well as many other legal duties. Guardianships are usually considered a last resort because when a guardianship is in place because the ward loses many of their rights under the law. The benefit of designating a guardian in your estate plan is so you can decide who you would want to be your guardian in the rare event you need a guardianship. If you don’t designate your own guardian, then require a guardian later, the court appoints one for you.
Why would you need a guardianship? Simply put, a guardianship is usually required when a person does not have powers of attorney in place and no longer has the capacity to sign new ones, or when a person’s power of attorney fails. How does that happen? First, if all your named agents are unable or unwilling to serve. This is one key reason to have back ups on your powers of attorney. Second, if you revoke your power of attorney, even unintentionally. Unfortunately, a common symptom of dementia is paranoia and can result in unintentional revocation of a power of attorney. Finally, there are some things your power of attorney just cannot do. Guardians have a lot more authority than powers of attorney and with that means that guardians are regulated much more closely by the courts.
It is important to designate a guardian in your estate planning documents. It is just as important to understand the responsibility that individual will take on and make sure they are up to the task.
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