When Guardianship is Necessary and How to Avoid the Process
Simply stated, Guardianship is only necessary when a person becomes incapacitated and one or more of the following issues arise:
- The incapacitated person has no incapacity planning documents (no estate planning);
- The incapacity planning documents haven’t been executed properly (therefore making the documents null and void), perhaps due to a service like legal zoom or free public pamphlet;
- The incapacity planning documents only account for one or two power holders and those power holders pass away prior to an individual’s incapacity;
- The incapacity planning documents are outdated and do not conform with existing state laws;
- The incapacity planning documents are lost and/or are not attainable by power holders for some reason; and/or
- An individual executes their last will and testament in an effort to create a low-cost “simple” estate plan, but neglects to execute any incapacity planning documents.
This is not an exhaustive list by any means, there may be other circumstances, on a case-by-case basis, that require the court-supervised guardianship in order to handle an incapacitated person’s medical and/or financial related affairs. The court supervised guardianship process is undoubtedly a “process” and should be avoided to the extent possible by properly executing valid and binding estate planning documents, updating them regularly and keeping them in a safe place.
It is important to tell at least one person (whether this is your spouse, family member, power holder(s) or even your attorney) where your documents are located and/or any passcodes or other obstacles to retrieving them (ie: home safe or safety deposit box at the bank). In some cases, It may be advisable to leave a copy of the document(s), including your last will and testament and/or your revocable living trust with a trusted family member, such as a spouse or any other person serving as a power holder. This is cautioned by the premise that in Florida the documents are immediately durable upon execution. In other words, they can immediately be used to act on your behalf (only your power holders) upon the documents’ execution. This is especially important to understand due to the possibility of abuse using the power of attorney for financial-related decisions. Therefore, the person you share your estate planning with should be trustworthy and reliable in your eyes. If you aren’t sure, then it is always better to leave the documents with your trusted advisor(s), which may be your attorney, CPA or financial advisor as the case may be.
Contact Capital Planning Law, PLLC for your complimentary consultation to discuss your estate planning, business law, probate, guardianship and/or real estate needs.