How to Avoid Guardianships
Is estate planning one of those things you have been putting off for a while now? Perhaps you feel uncomfortable planning for after death. However, a large part of estate planning is actually planning for your lifetime too. What if you are alive and unable to make your own financial or medical decisions? Who do you want to make those decisions on your behalf? Wisconsin law does not provide a default that automatically grants your spouse or children those rights.
In Wisconsin, there are only two ways for someone else to have legal authority to make decisions on your behalf. One option, which is preferred, is that you have powers of attorney drafted now while you still have capacity, so you can choose the people you would like to act on your behalf. You can also choose successor agents, which means you can make a second and third alternate option, in case the first person you choose is unable or unwilling to act. You can also decide which powers you want the person(s) you named to have, and you can coordinate your nominations with your overall estate plan.
If you do not have powers of attorney drafted and signed while you still have capacity, and someone is needed to act on your behalf, your family will have to go through a guardianship proceeding at the court. The judge will choose who will act on your behalf and what powers they will have. Your family, likely assisted by an attorney, will have to file a petition alleging why they think a guardian needs to be appointed and who they think should act as the guardian. Another attorney, as a guardian ad litem, will be appointed to represent you as the incapacitated person, and determine what is in your best interests. A physician and/or psychologist will exam you and provide the court with a statement regarding your mental capacity to make decisions. The court will schedule a hearing to determine your competency and decide who, if anyone should act on your behalf. This process can cost thousands of dollars.
Unfortunately, guardianships can open the door to family disputes. Often times, everyone involved agrees on the need for a guardianship, but sometimes the family members disagree on who should serve as the guardian. This is one of the reasons a guardian ad litem is appointed because he or she will need to make a determination on what is in your best interests.
A guardian of the person can be appointed to make health care decisions and/or a guardian of the estate can be appointed to make financial decisions. This is why both a Power of Attorney for Finances and a Health Care Power of Attorney need to be done now while you still have capacity.
If you have powers of attorney already, have them reviewed to make sure they are up to date and reflecting your current wishes. It’s also a good idea to have them reviewed by legal counsel if you are interested in allowing your named agent(s) to do asset protection planning on your behalf, in case you would ever need long term care.
Doing the powers of attorney now while you have capacity could potentially save your loved ones a lot of time and expenses. Plus, it allows you to make all the decisions ahead of time, rather than putting the ultimate decision making authority in the hands of a judge who does not even know you.