March 1, 2022
Perhaps you followed the Britney Spears guardianship trial or have seen “I Care A Lot” on Netflix. Guardians have almost total control over their wards’ lives, often with scant court supervision. What are the chances that a guardian could be appointed over you without your consent?
The good news is that getting a judge to grant a petition for guardianship is harder than it looks on TV. The bad news is that scammers are willing to put in the work. Here’s what you need to know to protect yourself.
Why Courts Appoint Guardians
Guardians are appointed to protect people who might suffer harm because they cannot make decisions for themselves. This means that if a person has already made important life decisions and put them in writing, then a court has less need to appoint a guardian over them.
How to Reduce the Chances of Guardianship
Most competent adults try to make basic decisions about their health care while they still can. For example, you can say how you want to be cared for near the end of your life by signing an advance directive, such as a living will. Because other health care decisions can arise, it’s also a good idea to give someone you trust a health care power of attorney to make those decisions for you if you can’t.
Judges are also concerned about preserving people’s wealth, including caring for their property, maintaining businesses, overseeing investments, etc., according to their previously expressed wishes. Therefore, if you have an estate plan—a will, a living will, trusts, a succession plan, etc.—it will be harder for someone to make the case that you need a guardian’s protection.
Although it is possible to draft an estate plan on your own, using a lawyer to create one—and to review it every five years—has the benefit of creating an attorney-client relationship. That can be very helpful if someone files a petition for involuntary guardianship against you.
Also, consider giving someone you trust a durable financial power of attorney to manage your financial affairs. It won’t go into effect unless you lose the ability to communicate or make decisions.
Finally, if you do need help managing your finances, consider appointing a Social Security representative payee. That reduces your attractiveness to scammers and predators because, even if they are appointed as your guardian, those checks won’t go to them.
The Takeaway
- Make important decisions and put them in writing today so a judge doesn’t have to appoint someone to make them for you tomorrow.
- Don’t forget to appoint a health care power of attorney and a durable financial power of attorney. They have no power while you are able to communicate your own wishes.
- If you appoint a Social Security representative payee, a future guardian will not have direct access to those funds.
Seniors can give SafetyDeed a limited durable power of attorney to inspect transactions involving their homes, including those conducted by their guardians and attorneys.
