New York Estate Planning & Elder Law Blog
Not seeing medical providers when necessary. Being financially exploited by others. Not being able to take care of financial situations due to incapacity. These are just some of the common problems that people encounter without a proper guardian. In these situations, it often becomes necessary to petition the court so a more appropriate guardian can be appointed to control the incapacitated person’s affairs.
The Dangers of Guardianship Law
Guardianship is a powerful area of law and if not properly considered can lead to some substantial challenges. Failure to adequately plan for guardianship can lead to a person losing their rights including the ability to choose where they live and how their finances are handled. Some estate planning experts argue that guardians have too much power, which has led to cases of some guardians taking advantage of vulnerable adults by either denying them medical care or taking advantage of the adult.
As a result, a person select an appropriate guardian. This guardian should be someone that you have substantial experience with and whom you trust. Failure to appoint a guardian in advance means that a court will be required to appoint someone not of your choosing to act as a guardian, which greatly increases the chance that you can end up a victim of elder abuse.
The Role of Professional Guardianship
When there are not any relatives or family members able to make decisions for an incapacitated individual, probate judges often appoint either volunteers or professional guardians. While guardians are sometimes assigned in this way, estate planning experts have commented that additional clarity is necessary regarding what powers these guardians have.
Some estate planning experts criticize guardianship because it allows the estates of wealthy but vulnerable individuals to be exploited. Other estate planning agencies argue that they have substantial oversight of guardians and that no cases of financial exploitation have ever occurred.
A reoccurring challenge with professional guardians, however, can be the difficulty in communicating clearly with the incapacitated individual. Often, the incapacitated person does not understand exactly what was happening or why the guardian is making decisions for them.
If you are considering appointing a professional to act as a guardian, it is a wise idea to speak with this person beforehand to learn more about their experience helping incapacitated individuals as well as gain a better understanding of what personal interactions with this individual will be like. To begin considering the role of a professional as a guardian, some people begin by speaking to professional contacts or talking about the matter with any professionals that the person respects.
Speak with a Knowledgeable Estate Planning Lawyer
The estate planning process is not without its challenges. It is likely for challenges to arise if you fail to consider a guardian should be appointed before becoming incapacitated. If you or a loved one needs the assistance of a knowledgeable estate planning lawyer to navigate guardian issues, do not hesitate to contact Ettinger Estate Planning today to schedule a free case evaluation.