When is a Guardianship Necessary?

A guardianship occurs when a judge determines, with the advice of your doctors, that you are unable to make your own medical decisions. The court will then name a guardian, who is usually a friend or family member, to oversee your health care treatment.

No Assigned Agent

If you become disabled either mentally or physically and you are no longer able to state your medical wishes, you must have someone available to speak for you. Many people use a Health Care Power of Attorney or Advance Health Care Directive to name a loved one as their Healthcare Agent. If you have not assigned a health care agent and are no longer able to manage your property or health care decisions, a guardianship will be ordered by the court.

Invalid Documents

Even if you do create a Health Care Power of Attorney or Advance Health Care Directive, you must be certain your documents are valid. Keep your agent choice up-to-date. If your preferred agent becomes unavailable, be sure to name a new health care spokesperson or have a back-up listed.

If you create your own document and it is not properly executed, a judge may consider it null and void. Your attorney can help you avoid this with a professionally drafted and correctly executed Health Care Power of Attorney. If you suspect any family member may protest your health care agent choice, you may also want to get a doctor’s statement advising that you were of sound mind at the time you signed your Health Care Power of Attorney.

Why to Avoid

If you do not choose a health care agent or if your document is invalid you will likely learn the perils of a guardianship. Family members may not agree with the court chosen guardian, and they may not like the guardian’s decisions. Your guardian may make choices that do not meet your needs or are out of line with your preferences. To avoid these headaches, always make sure you have an updated Health Care Power of Attorney – a health care agent who is aware of his or her duties, who you trust and who can be counted on during your time of need – and at least one back-up agent in case your primary agent is unable to act for you.

Larry Parman
Attorney at Law