According to a guide created by the Kansas Guardianship Program, “Guardianship or conservatorship is an attempt by the state to provide a way to help and protect a person when that person is incapable of self-care or of acting in his or her own best interest.” Oklahoma and Missouri have similar statutes.
Naming a guardian is a substantial restriction on a person’s autonomy and freedom, but it may be necessary if someone is no longer able to make decisions, manage his or her own affairs, or communicate preferences.
Guardianship has significant advantages for those helping someone who is incapacitated. It also has substantial disadvantages. It is important to consider the pros and cons, as well as other alternatives to guardianship. Parman & Easterday can help with this analysis.
Our guardianship lawyers provide assistance to those wishing to avoid guardianship in the future, as well as to those who believe guardianship has become necessary for a loved one. We can provide assistance in Overland Park, Tulsa, Oklahoma City, and surrounding areas in Kansas and Oklahoma.
Pros and Cons of Guardianship
Guardianship occurs when someone is declared a ward because that person is incapacitated. A guardian is appointed to act on behalf of the ward and manage the ward’s affairs. There are advantages and disadvantages to this process including:
- Protection for the incapacitated. Protection of the incapacitated person is the main reason for naming a guardian. If someone you love cannot act in his or her own best interests, guardianship allows you to step in.
- Court oversight. This is both an advantage and a disadvantage. When a guardian is named, the court will monitor the guardian’s actions to make sure the guardian is acting in the best interests of the ward. This can be a good thing because it ensures the guardian actually helps the ward. It can also be intrusive. When alternatives are used, those who take control in case of incapacity still have a legal duty to the incapacitated person, they just don’t have the court monitoring what is being done.
- The ability to seek guardianship after incapacity. This is the biggest reason why most people need guardians. If someone is already incapacitated, there is no other alternative. All other methods of taking control of someone’s assets and decision-making require advance planning prior to incapacity.
- Complexity: Complexity is a disadvantage. Court proceedings take time and are costly. The Court must first determine if the person should be declared a ward and then second determine who should be appointed as the guardian.
These are just a few of the advantages and disadvantages of naming a guardian for a ward. Parman & Easterday can help you decide if this option is right for you.
Alternatives to Guardianship
If you do not want a guardian to be named for you in case of incapacitation, you need to make advance plans while you can. Even young people should have a plan in place, as illness or injury can strike people of any age.
Some different alternatives you may wish to incorporate in your plan include:
- A general durable power of attorney: With a power of attorney, you name an agent who has authority to act for you. You can make the grant of authority last after you become incapacitated by making sure the power of attorney is durable. Be aware, though, that many financial institutions will not honor the power of attorney if it is over five years old.
- A health care power of attorney. The health care proxy you name in your health care power of attorney can authorize treatment and care if you are unable to approve it due to illness or injury.
- A living trust: With a revocable or irrevocable living trust, you can name a backup trustee who will take control and manage your trust assets if you can no longer do so yourself.
- Advanced healthcare directives: Otherwise known as Living wills, these and “Do Not Resuscitate” orders, when appropriate, let you decide what, if any, extraordinary measures you want taken if you have a terminal illness, are persistently unconscious, or have an untreatable and irreversible condition that will result in your death. It can also authorize the administration of pain medicine to keep you comfortable even though it might shorten your life.
Parman & Easterday will assist you in exploring all alternatives to guardianship. You must put a plan in place before a medical emergency leaves you incapacitated or it will be too late and guardianship will be the only option.
How a Guardianship Lawyer Can Help
If you want to make sure you never end up needing a guardian, call Parman & Easterday. We can assist you with creating financial and health care powers of attorney, living wills, and other essential legal tools to help protect your autonomy. We will work with you to find affordable and effective solutions to incapacity planning while you are still of sound mind.
If you are concerned that a loved one needs a guardian or if you are worried about whether a guardian is fulfilling his or her duties, we can provide representation and advice. Call us today at (405) 703-9987 or (913) 385-9400 or contact us online to learn more about the assistance we offer. You can also learn more about both guardianship and incapacity planning by joining us for a free seminar.