Over the past several weeks we have looked at some essential issues surrounding guardians in Kansas, Missouri, and Oklahoma. Today we will look at what you can do when it comes to choosing your guardian. While we have looked at the kinds of guardians, the types of responsibilities they have, and the process of appointing a guardian, we haven’t addressed the question of whether you can choose your own guardian, or whether you can exert any control over the guardianship process. Today we will examine these questions.
Choosing Your Guardian: Adult Guardianships
When an adult loses his or her ability to make decisions or communicate, a court will appoint an adult guardian for that person. Because the incapacitated person is not able to make choices or communicate them, he or she has little control over who the court chooses.
However, if that person acted prior to losing capacity, he or she can exert significant control over who will be making decisions on his or her behalf. A capable adult can use a variety of estate planning tools to effectively delegate decision-making authority to others if and when that adult loses capacity.
If you want someone to make medical decisions on your behalf if you cannot, you can create an advance medical directive that allows you to choose a medical representative to make specific decisions about the care you want to accept. Other tools allow you to name representatives to manage your property, your finances, and even exert control over your business.
Choosing Your Guardian: Child Guardianships
When parents of young children create estate plans they often do so with the children at the center of those plans. When parents consider what might happen to their children should they die or lose capacity, they can name a guardian. If they lose capacity or die, the court will usually appoint as guardian the person named by the parents so long as they made their selection known in a legally effective manner.
While the court always has the final say on who becomes a child’s guardian, it will typically defer to the parents’ wishes as long as that person is willing and capable. Should the original selection prove to be unwilling or unable to serve as guardian, prudent parents name successor guardians so they can be sure a court will choose someone who they want to serve in that capacity.
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