Alternatives to guardianship for an incapacitated loved one


As the baby boom generation ages, many people in California are dealing with the issue of elderly relatives who can no longer make decisions on their own behalf. When a loved one becomes incapacitated due to dementia, illness or injury, it is sometimes necessary for the court to appoint a guardian for that person.

A guardian is a person designated by the court to make decisions on behalf of another person, usually called the ward. Among other decisions, a guardian can give or withhold consent for medical treatment; manage the ward's financial affairs; and arrange for the purchase of necessities including vehicles, groceries and other items.

The process of appointing a guardian can be cumbersome and costly. Fortunately, there are simpler and generally more effective alternatives available in California: the durable power of attorney and the advance health care directive, also known as the living will. With a durable POA, an individual can designate another person to make decisions on their behalf and manage their affairs in the event they become incapacitated. An advance health care directive allows the individual to appoint a health care agent to make decisions on their behalf and to state their preferences regarding medical care.

The caveat to both the durable POA and the advance health care directive is that these documents must be executed while the individual is still mentally competent. If the person is already incapacitated, it may be too late to prepare these documents. In that event guardianship may be the only alternative.

Many people choose to execute a durable POA and an advance health care directive as part of the estate planning process. In this way, one can avoid burdening loved ones with the expense of appointing a guardian in the event of future incapacity.

Source: Findlaw.com, "Guardianship Basics," accessed July 30, 2016

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