Guardianship, Conservatorship & Control

Jan 7, 2011

The rudimentary purpose of estate planning from a financial standpoint is to take control and make sure that your assets are distributed according to your wishes rather than the will of the court. However, there are other matters that can be left up to the court if your estate plan does not address the possibility of future incapacitation. No one would debate the fact that considering such a scenario in not especially pleasant, but it is necessary all the same.

If you look at the statistics people are living longer, and the fastest growing age group is people 85 and over. Once you start advancing past that age you may indeed start to find it difficult to make sound decisions even if you are not physically incapacitated, and this is no badge of shame. Aging is something that we all experience and it is as natural as being born, but you do have to address the realities that you may face and make the appropriate preparations.

Let’s say you were to reach the point where you were having trouble making sound personal and financial decisions and did no planning to address this eventuality. Any interested party could then petition the court to appoint a guardian of the person to make personal decisions for you, and this would include sensitive medical choices. The court could also be asked to appoint a guardian of the property(which could be the same person as the guardian of the person), and this would be an individual or entity that would manage the assets in your estate.

Most people would prefer to select their own representatives to take on these roles if they were to become unable to make decisions on their own. This can be done by executing a health care proxy and a durable financial power of attorney. When you do this you take control of your own future, name the representatives of your choice, and gain the peace of mind that comes with knowing that your affairs are in trusted hands.

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