While we at Northern Virginia Trusts & Estates do not offer adult guardianships as part of our legal services, it is a topic worth learning about especially as it compares to guardianship considerations when minor children are involved.
Legal guardians are individuals who are responsible for the care, well-being, and decisions made for another person who is unable to take care of these responsibilities on their own. In most cases, guardians are needed when you have children and want to be sure your care wishes are followed in the event something happens to you. But in other cases, dependent adults can benefit from designating a guardian ahead of time.
Why Would an Adult Need a Guardianship?
According to ExpertLaw.com, if the following three elements are present, a court may find it necessary to appoint a guardian for an adult:
The individual has a physical or mental disability that makes it difficult or impossible to take care of basic needs, such as food, housing and healthcare.
These issues put the individual at risk of causing or experiencing substantial harm.
The individual has not already legally authorized someone to take responsibility for their life necessities.
Having a Court Appointed Guardian
If a physician and judge have evaluated your case and determined that you are no longer cable of making important decisions on your own behalf, and you do not already have a legal guardian chosen, the court will appoint a guardian for you. The guardian appointed by the court could be a family member, or it could be someone you do not know from a third party agency.
The person who is appointed to be your guardian will be responsible for making important life choices for you. They will be in charge of choices regarding where you will live, the medical treatments you will receive, your social activities, and many other decisions.
Depending upon the limitations, or lack thereof, set forth by the court, your guardian may have the power to make important medical and financial decisions for you. If the guardian is someone that does not know you well, there is a good chance they may not be able to accurately represent your wishes and preferences.
Additionally, guardians should ideally visit the incapacitated adult as frequently as needed in order to fully comprehend his or her limitations and needs. The incapacitated person is supposed to be included as much as possible in the decision-making processes. However, depending upon the guardian chosen, and the capabilities of the incapacitated adult, it still may not be possible to be accurately represented by a court appointed guardian.
What are Alternatives to Having a Guardianship?
If you are worried about not having your voice heard in the event that a mental or physical disability leaves you unable to make decisions, there are steps you can take now to plan and protect yourself legally. During your estate planning process, you should make it legally clear who is to carry out your wishes if you are no longer considered able to do so.
Considering all of the above factors, you may want to make sure that your elder law attorney plan includes both a medial power of attorney and a general durable power of attorney. By including these agreements in your estate plan, you can specify what your preference are regarding medical treatments and finances, and you can decide who will act as your representative if you are incapacitated. The courts will have no reason to appoint a guardian if you have already accurately completed these documents.
Designating a Durable Power of Attorney
A durable power of attorney gives someone that you trust the permission to execute your decisions, if you are incapacitated. In addition to choosing someone that you find to be dependable, it is wise to go over the specifics of the document with this person as early as possible to make certain that your wishes are fully understood.
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