Due to age, incapacity, or whatever the case may be, guardianship is where one person becomes the court appointed legal guardian of another person (referred to as the “ward”). Guardianship is an unfortunate, but sometimes necessary, aspect of life that we try to avoid for our estate planning clients to the greatest extent possible.
Occasionally, a guardianship will be necessary in the case of a minor child who is abandoned by his or her parents, has no parents due to early death, or who has unfit parents. But most commonly, a guardianship occurs when an elderly person begins to lose his or her mental capacity due to Alzheimer’s, Dementia, or some other disease of the brain.
If an adult becomes mentally incompetent, but does not have a properly sufficient power of attorney document allowing someone else to act on his or her behalf under these circumstances, then a court proceeding needs to occur to determine whether the person is officially legally incompetent. If so, a person will be appointed by the court as guardian of the incompetent ward (and the ward then loses his or her legal rights to make decisions for himself or herself – or at least some of these rights as the court may determine). Also, the guardianship may be temporary or permanent. And the guardianship may be over the ward’s assets (guardian of the estate), over the ward’s personal affairs (guardian of the person), or both.
Tragically, guardianship hearings can be very stressful for the ward, as well as expensive, time-consuming, and embarrassing. For these reasons, we try to avoid this scenario with a properly executed Power of Attorney document. But if this scenario cannot be avoided, and a guardianship is necessary, Carolina Tax, Trusts & Estates is capable of initiating guardianship proceedings (and, occasionally, upon request, can serve as Guardian). We welcome you to contact us for more information.