Essential Legal Documents Graduating Seniors Need

June 18, 2024

As new legal adults transition from high school to college or the workforce, they must understand the significance of having essential legal documents in place. There are some essential legal documents graduating seniors need. These documents can protect their interests and ensure their wishes are respected, especially in unexpected situations.

Many young adults think estate planning is only for older people, but it’s crucial for everyone. Once young adults turn 18, they are legal adults, and parents or guardians no longer have authority over their health or financial accounts or information. Accidents and illnesses can happen at any age, and having the right documents can make a big difference.

There are five essential legal documents that every young adult should have:

Healthcare Proxy: This document allows a trusted person to make medical decisions on your behalf if you can’t communicate your wishes. Choosing a reliable and nearby person is important for making quick decisions if needed.
HIPAA Authorization: This gives certain people access to your medical records. Without it, your loved ones might not be able to get the information they need to help you in a medical emergency.
Durable Financial Power of Attorney: This lets someone manage your finances if you cannot do so yourself. It can help ensure your bills are paid, and your finances are handled properly if you’re incapacitated.
Living Will: This outlines your medical treatment and end-of-life care preferences. It helps your family know your wishes regarding life support and other critical decisions.
Preneed Guardian Designation: This appoints someone to care for you or your dependents if you cannot do so. For young parents, it ensures that their children are cared for without waiting for court appointments.

Consider the story shared by the Financial Planning Association about a young adult who was in a car accident. Despite being healthy and active, the accident left them unable to make decisions.

However, they had a healthcare proxy and a durable financial power of attorney. This enabled their family to step in and make medical and financial decisions on their behalf. Good estate planning can make hard times a little more manageable, even for young and healthy people.

Without these essential documents, your family might face delays in managing your affairs. Courts could appoint someone to make decisions for you. While this may work out, there’s no guarantee a court-appointed agent’s views would align with your wishes. Being unprepared can make difficult times even more stressful and challenging.

Creating these documents is easier than you might think. Here are some steps to get started:

Talk to Your Parents or Guardians: Discuss your plans and get their input on who your healthcare proxy or financial power of attorney should be.
Consult an Attorney: Seek advice from an estate planning attorney who can draft these documents to ensure they meet legal requirements and accurately reflect your wishes.
Store Documents Safely: Keep your documents in a safe place, and make sure that your designated proxies know where to find them.
Review Regularly: Life changes might require updates to your documents. Events such as moving to a new state, getting married, or having a child should prompt you to revisit your documents.

If you’re a young adult or a parent of one, now is the time to start thinking about these essential legal documents graduating seniors need. If you would like to learn more about planning for young adults, please visit our previous posts.

Reference: Financial Planning Association (Oct. 2023) “Essential Estate Planning for Young Adults”

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Diverse Family Structures Have Unique Estate Planning Challenges

June 10, 2024

American family law has traditionally focused on the nuclear family. However, Forbes reports that only 18% of American adults now fit this model. There are many new types of families today, such as blended families, single-parent households and LGBTQ+ families. Dated legal definitions of family could be a hurdle in your estate planning. Diverse family structures have unique estate planning challenges. However, it’s a hurdle you can overcome with knowledge and legal guidance.

Most legal protections and rights cater to the assumption that a family is a married couple with blood children. This alone creates obstacles for many families, even those that look traditional. Many heterosexual couples have children but haven’t yet married. This can deprive them of various rights and may exclude partners from inheritance.

Blended families with stepchildren also frequently struggle with inheritance. If the parents fail to lay out the rights of the children, it can go to a lengthy probate process. Likewise, the children of single parents face a uniquely uncertain future should their parents die unexpectedly. Another diverse family type that frequently struggles with family law is LGBTQ+ families. The rights of same-sex couples vary widely by state, which makes estate planning especially important for them.

These diverse families and more can find themselves underserved by laws that don’t have them in mind. However, that doesn’t mean that their wishes must go un-respected. There are many estate planning tools available that can help people clarify and execute their wishes once they’re gone.

Advanced estate planning techniques can give anyone greater control of their estate. Everyone with a significant estate or minor children should have an estate plan. However, diverse families need to use these tools to safeguard their wishes.

Wills: A well-drafted will is Step One. It makes it far easier to ensure that your assets go to your inheritors as you wish.
Trusts: Trusts offer greater control over asset distribution while avoiding will-related pitfalls. Living trusts can be adjusted during one’s lifetime, while irrevocable trusts protect assets but are permanent.
Powers of attorney: Financial and healthcare powers of attorney let a trusted person decide if the primary individual is incapacitated.
Testamentary guardianship: Single-parent, blended families and same-sex couples should appoint guardians for minor children in their wills.
Beneficiary Designations: Designate the beneficiaries for life insurance, retirement and investment accounts. This ensures that the executor of your will transfers assets according to your wishes.

The evolving definition of family challenges conventional estate planning. Unmarried couples, blended families and other non-traditional arrangements often need tailored estate plans. However, untangling estate law on your own isn’t easy.

Diverse family structures have unique estate planning challenges. Schedule a consultation with an estate planning attorney, who will address local laws and your unique family structure, to craft a comprehensive estate plan. If you would like to learn more about planning for blended families, please visit our previous posts.

Reference: Forbes (April 2, 2024) “How Expanding The Legal Definition Of Family Helps Us All”

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Updating Beneficiaries after Gray Divorce

May 30, 2024

Navigating the complexities of estate planning after a mid- to late-life divorce, or “gray divorce,” requires meticulous attention to detail and proactive measures, according to Kiplinger’s article, Don’t Forget to Update Beneficiaries After a Gray Divorce. Updating beneficiaries after a gray divorce is critical to estate planning. This article explores essential considerations for those undergoing a gray divorce, emphasizing the importance of reevaluating estate plans to reflect current intentions and relationships.

While family law attorneys primarily focus on asset division during divorce proceedings, it’s imperative to consider the fate of these assets post-divorce, particularly concerning beneficiaries. Updating beneficiaries on investment accounts, retirement funds and life insurance policies is paramount. Failure to do so could result in unintended consequences, potentially leaving assets to a former spouse.

Many states have statutes that automatically revoke a former spouse as a beneficiary post-divorce. However, these laws vary, and some exceptions exist, notably under the Employee Retirement Income Security Act (ERISA) plans. Understanding the nuances of state laws and ERISA regulations is vital to ensure compliance and avoid costly mistakes.

In some divorces, waivers might be used in decrees to address survivorship benefits related to retirement plans. The effectiveness of these waivers relies on adherence to plan documents and detailed planning. Consulting with a knowledgeable estate planning attorney and incorporating specific language in property settlement agreements can mitigate risks and ensure comprehensive protection of assets.

Key Takeaways:

Proactive Approach: Do not wait until after your divorce is finalized to update your beneficiaries. Proactively review and revise beneficiary designations on all relevant accounts.
Understanding State Laws: Familiarize yourself with your state’s automatic revocation laws and how they affect beneficiary designations. Ensure that these laws align with your post-divorce intentions.
Consulting with Professionals: Consult with an experienced estate planning attorney to navigate the complexities of beneficiary updates and ensure compliance with state laws and ERISA regulations.
Detailed Planning: Use specific language in property settlement agreements to address survivorship benefits associated with retirement plans and other assets. Attention to detail is essential to avoid potential conflicts and ensure that your wishes are upheld.

In conclusion, updating beneficiaries after a gray divorce is critical to estate planning. By taking proactive measures, understanding relevant laws and seeking professional guidance, you can protect your assets and secure the financial future of your loved ones. Ready to embark on your post-divorce estate planning journey? Schedule a consultation today and gain peace of mind knowing that your assets are in trusted hands. If you would like to learn more about divorce and reevaluating your estate planning, please visit our previous posts.

Reference: Kiplinger (April 15, 2024) “Don’t Forget to Update Beneficiaries After a Gray Divorce”

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A Psychiatric Advance Directive is an Additional tool to Consider

May 16, 2024

Comprehensive estate planning today includes elder law and other strategies that help protect your assets and interests if you experience cognitive decline or incapacity. Have you thought about protecting your mental health and care if you can’t advocate for yourself? Based on the Trust & Will article “Guide to Psychiatric Advance Directives – What You Need to Know,” we explore psychiatric advance directives (PADs), their purpose and how to establish them. A Psychiatric advance directive is an additional tool to consider in your overall estate plan.

You might not have heard of psychiatric advance directives (PADs). However, they might be an important strategy in your estate plan. PADs are instructions and preferences for your mental health care. Similar to a living will or advance medical directives, PADs are a legal document outlining your preferences for psychiatric treatment should you become unable to make decisions due to a mental illness crisis. Picture it as your roadmap, guiding healthcare providers on your treatment choices, from medications to therapies, even during challenging times when communication might be difficult.

Psychological and physical health are essential for an individual’s overall wellness. Psychiatric advance directives proactively communicate your psychological treatment preferences, empowering an advocate for your mental health care.

Consider it a letter of instructions to a trusted friend or family member and your healthcare team, ensuring that your wishes are respected and understood regarding your choice of psychiatric provider and mental health facility.

You probably know about advance medical directives and medical powers of attorney in estate planning. Most PADs have these two components. It’s crucial to meet state-specific requirements, such as being of legal age and having witnesses. Remember, PADs come into effect when you’re determined unable to make mental health decisions, often by a qualified mental health professional.

Key Psychiatric Advance Directives (PADs) in Estate Planning Takeaways:

What Are PADs? PADs are legal documents that include advance medical directives and powers of attorney outlining one’s mental health wishes.
Why Have PADs? Instructions and guidance for psychological care when an individual is incapacitated.
How to Establish PADS? Requirements are the same as advance medical directives and a medical POA.

Your mental health matters, and A psychiatric advance directive is an additional tool to consider in your overall estate planning. Speak to an Estate Planning or Elder Law attorney to discuss your needs and how a PAD may play a role. If you would like to learn more about advance directives, please visit our previous posts.

Reference: Trust & Will “Guide to Psychiatric Advance Directives – What You Need to Know,”

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Alternatives to Avoid Guardianship as You Age

May 15, 2024

Individuals often overlook strategies in their estate planning to avoid restrictive guardianship if they become incapacitated. While guardianship protects individuals who cannot decide or act for themselves, it can inadvertently strip them of their autonomy. There are alternatives to avoid guardianship as you age.

The restrictive nature of a court-appointed guardian acting on behalf of an impaired individual doesn’t account for that person’s wishes. In a video titled “Alternatives to Guardianship,” The American College of Trust and Estate Counsel (ACTEC) highlights essential guardianship alternatives that preserve a person’s autonomy. This article discusses the need for protection as we age, what guardianship is and how powers of attorney (POAs) are alternative estate planning strategies that give individuals more control over decision-making.

Aging and estate planning go hand-in-hand. Estate plans with strategies that address cognitive decline and incapacity protect you from financial risks, including misuse of assets or unauthorized withdrawals. When it comes to healthcare, individuals must retain control over medical decisions. They may not be honored if you are incapacitated without legally documented healthcare wishes.

Guardianship involves the legal authority granted to a court-appointed guardian to act and make decisions for a person who is physically or mentally incapable. The guardian oversees the person’s health, medical care and property. When an individual is evaluated and deemed incapacitated, a court will assign a guardian.

A guardian’s responsibilities include making personal care decisions, overseeing living arrangements and handling their financial affairs. They are required to keep detailed records and check in with the court regularly. However, guardianships are often appointed without considering alternatives, and they strip an individual of all decision-making authority, including where they live, what they eat and whether they will get any medical care. ACTEC notes that guardianship can be hurtful to the family, in addition to being an expensive process.

A power of attorney (POA) is a legal document that appoints someone you trust to act on your behalf. Only a durable power of attorney is valid if you are incapacitated. There are different POAs to protect your financial interests and medical wishes.

To prevent financial risks if you are incapacitated, a financial power of attorney names an agent with authority over financial matters, such as accessing bank accounts, paying bills and managing retirement accounts, real estate and investments.

A medical power of attorney is a healthcare or advance directive that allows someone else to make medical decisions based on your wishes. Often called a health care agent, this person follows your medical treatment as outlined in the document.

Key Guardianship Alternatives Takeaways:

Common Risks as We Age: Financial loss and unwanted medical care.
Typical Cons of Guardianship: Total loss of autonomy with court-appointed guardians.
Important Benefits of POAs: More control of your wishes and asset protection.

Elder law and estate planning strategies that protect you as you age should not be synonymous with surrendering autonomy through guardianship. Individuals can confidently navigate this terrain by exploring alternatives to avoid guardianship as you age. If you would like to learn more about guardianships, please visit our previous posts.

Reference: The American College of Trust and Estate Counsel (ACTEC) (May 13, 2021) “Alternatives to Guardianship”

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Estate Planning for Veterans and Active Military Is Important

May 7, 2024

Your dedication to your country is unwavering as a veteran or active military service member. While you’re committed to your duty, you must protect yourself and your loved ones and preserve your legacy. Veterans and active military personnel can and should create an estate plan to match their unique needs. Based on Trust & Will’s article, “Estate Planning for Veterans & Active Military,” we look at why estate planning for veterans and active military personnel is so important.

Military life is marked by unpredictability and uncertainty for you and your family, making estate planning a vital aspect of preparing for the future. Many individuals have plans to distribute funds and appoint trusted loved ones to handle medical and financial matters if the unthinkable happens. Estate planning is essential to help provide for your loved ones if you pass away or are incapacitated. Knowing that your family will be cared for can give you peace of mind.

A will serves as a cornerstone of your estate plan, allowing you to:

Protect Your Family: Specify guardianship for minor children, ensuring they’re cared for by trusted individuals in your absence.
Distribute Assets Seamlessly: Designate beneficiaries and outline asset distribution instructions, including real estate, retirement and financial accounts, sentimental items, and other property.
Plan for the Unexpected: Outline your preferences for medical care and end-of-life decisions to prepare for unforeseen circumstances.

In the military, adaptability is critical, but so is ensuring your affairs are managed in your absence. Powers of Attorney enable you to:

Delegate Your Decisions: If you are incapacitated, designate trusted individuals to handle your legal, financial, and medical decisions.
Manage Your Affairs: Maintain continuity in managing assets, paying bills, and making critical decisions, even during deployments or periods of incapacity.
Mitigate Financial Risk: Protect against financial exploitation and past-due bills by appointing reliable agents to act in your best interests.

For military families, asset protection and efficient wealth transfer are paramount. Trusts offer a range of benefits, including:

Asset Preservation: Safeguard assets during incapacity or deployment, ensuring financial stability for your family.
Probate Avoidance: Streamline the distribution of assets to beneficiaries, bypassing the lengthy and costly probate process.
Tax Efficiency: Minimize estate taxes and maximize tax savings, preserving more of your hard-earned assets for future generations.

Your dedication and sacrifice are unmatched as a veteran or active military service member. That is why estate planning is so important for veterans and active military personnel. By prioritizing estate planning and including will, trust, and power of attorney strategies, you can protect your loved ones and preserve your legacy for generations. Consult with an experienced estate planning attorney for peace of mind. If you would like to learn more about planning for veterans, please visit our previous posts.

Reference: Trust & Will “Estate Planning for Veterans & Active Military,”

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Estate Planning should be a Major Consideration for Small Business Owners

April 16, 2024

Estate planning should be a major consideration for successful small business owners, especially if they intend to build generational wealth and create a legacy. The title of a recent article from Business Insider says it all: “You might not want to think about estate planning, but as a financial planner, I know it’s essential for small-business owners.”

There are more complex issues for business owners than employees for estate planning. Therefore, be sure to work with an experienced estate planning attorney who will create a plan to protect you, your family and your business. As you go through the process, keep these basics in mind:

Last Will and Testament. This document is the foundation of an estate plan, providing directions to the state probate court regarding your wishes for distributing assets. It also names a guardian responsible for minor children upon your passing. If you don’t have a will, assets are distributed according to your state’s intestacy laws, typically based on kinship. You can update and change your will throughout your lifetime, and it should be reviewed every three to five years.

Revocable Living Trust. Having a revocable living trust gives you more control over assets, which could be necessary to distribute business assets. A revocable living trust can be altered while you are living, so changes in your business can be reflected in the directions in the trust.

Financial Power of Attorney. This document is critical if you are the business owner who performs most of the financial tasks of your business. When a business owner becomes incapacitated, having someone named Power of Attorney gives the POA the ability to pay bills, make bank deposits and withdrawals, file business and personal taxes and make any other financial decisions you wish. POA can be limited if you only want someone to pay bills, or they can be broad, allowing the agent to do anything you would do to keep the business running while you are incapacitated. Your estate planning attorney can craft a POA to suit your needs.Benefi

Business Succession Plan. A business succession plan should be in place as soon as your business gains traction and becomes successful. Distributing shares of the business after you pass is fine. However, what if your heirs don’t have a clue how the business works? Do you want them to sell it after you pass or maintain it for the next generation? A succession plan requires the help of an estate planning attorney, CPA and financial professionals to create a management team, define roles, set performance guidelines, etc.

Digital Estate Plan. We spend so much time online. However, few have plans for our digital assets. If your business is online, has a website, and uses social media, online finances, and cell phones, you need a digital estate plan to identify assets and provide instructions on what you want to be done with those assets after you have passed.

Review Beneficiary Designations. Any account that can name a beneficiary, such as retirement plans, investment accounts, or life insurance policies, must be reviewed every few years or whenever a trigger event, including birth, death, divorce, or remarriage. Upon your passing, these assets will be passed directly to the beneficiary. Be sure the person you named twenty years ago on your life insurance policy is still the right person to receive proceeds upon your passing.

Estate planning should be a major consideration for successful small business owners. An experienced estate planning attorney can review your current estate plan to ensure that it covers all bases for you and your business. If you would like to learn more about planning for business owners, please visit our previous posts.

Reference: Business Insider (March 22, 2024) “You might not want to think about estate planning, but as a financial planner, I know it’s essential for small-business owners”

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Divorce Impacts your Estate Plan

February 26, 2024

Divorce is a life-altering event that significantly impacts various aspects of life, including your estate plan. Clients either going through a divorce or have recently finalized one often feel uncertain about how the divorce will affect their estate. This article shares crucial aspects of revising your estate plan after a divorce, ensuring that your assets and loved ones are protected according to your current wishes.

When you get divorced, updating your estate plan is imperative, as your ex-spouse may still be entitled to certain benefits. Your estate, which includes all assets owned, might still be accessible to your ex-spouse unless changes are made. Revising your estate plan ensures that your assets are distributed according to your updated preferences. Updating your will is essential after a divorce. Your ex-spouse may still be named as the executor or beneficiary. By revising your will, you can ensure that your estate is administered by someone you trust and that your assets are distributed according to your latest intentions.

Revoking your power of attorney is a critical step post-divorce. Your ex-spouse may be able to make financial and care decisions on your behalf. It’s advisable to appoint someone you trust to handle these matters, ensuring that your affairs are managed according to your current preferences.

Beneficiary designations are often overlooked during estate planning after divorce. It’s crucial to revise these as your ex-spouse might still be listed as a beneficiary on life insurance policies, retirement accounts and other financial instruments. Updating these designations is a simple yet essential step in ensuring that your estate is distributed according to your current wishes. Your ex-spouse is likely named as a trustee or beneficiary if you have a living trust. Post-divorce, you need to revise this document to reflect your current wishes. This might include appointing a new trustee or changing the beneficiaries.

If you have minor children, your estate plan probably includes guardianship designations. Post-divorce, reassess these choices. You might want to name someone other than your ex-spouse as the guardian, ensuring that your children’s care aligns with your current wishes.

State law and the terms of your divorce decree can impact your estate plan. Understanding these implications and ensuring that your estate plan complies with legal requirements is important. An experienced estate planning attorney can provide valuable insights and guidance.

Don’t wait until the divorce is finalized. Start updating your estate plan as soon as the divorce is pending. This proactive approach ensures that your interests are protected throughout the divorce process.

Divorce significantly affects your estate plan, and it’s crucial to take timely action to revise it. Remember, updating your estate plan post-divorce is not just a legal necessity; ensuring that your assets and loved ones are protected according to your current wishes is crucial. Don’t hesitate to seek professional assistance to navigate this complex process. If you would like to read more about estate planning post divorce, please visit our previous posts.

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Avoid Adding Adult Children as Joint Owners

December 5, 2023

It is generally wise to avoid adding adult children as joint owners of your accounts. The conversation may concern a checking or savings account or both. Unsolicited advice usually goes something like this: “If you want to have your children to be able to pay your bills if something happens to you, you need to add them to the account.” While the intentions are good, a recent Spokane Journal of Business article advises otherwise: “Adding adult children to accounts can be problematic.”

People are made to worry even more when they are told that if there is no second name on the account, it will be frozen upon death and no one can access it until a lengthy and costly probate process has occurred.

To do the right thing, many people respond by adding their most responsible adult child to the account. They don’t realize they are creating more problems than they are solving. A better solution exists, and it should be something taken care of when preparing or revising your estate plan.

Why wouldn’t you want to add an adult child to your accounts? Simply put, your last will and testament doesn’t apply to a bank account if it is a joint account. Most bank accounts are owned with a “joint tenancy with right of survivorship.” This means if the primary owner, the parent, should die, the adult child becomes the sole owner of assets in the account, regardless of what your will says.

Assuming that your intention is to split the assets in the account among several beneficiaries, this may or may not happen. The new account owner is under no legal obligation to share the assets, as they are solely and legally entitled to these funds.

Another problem: if the child decides to split the funds and transfer them to siblings, the IRS may see this as a gift subject to the requirement to fill out a gift tax return.

By having a joint owner, you may also expose these assets to creditor claims. What if the child named on the bank account causes a car accident and is sued? Those assets are considered owned by the child and could be attached by a creditor. If your child gets divorced, those assets may also be part of a divorce settlement.

Estate tax reporting gets more complicated. The IRS places an additional burden on accounts held as joint tenants with the right of survivorship. If the child unexpectedly dies first, the law places the burden on the estate to prove the child did not own the asset.

Is there a solution? Yes, a power of attorney.

A power of attorney is a legal document allowing an agent to act on behalf of the parent, providing authorization without ownership. The parent’s goal is almost always to provide authorization and access, but not ownership.

The POA can be made effective immediately upon signing to allow the child immediate access to the account for bill paying. It can apply not only to bank accounts but to all assets. Alternatively, it can also be limited to specific assets.

Avoid adding adult children as joint owners of your financial accounts. Your estate planning attorney can create a POA to authorize an agent to give them as much or as little control as you want. You’ll be able to determine precisely what you do and do not wish your agent to do. If you would like to learn more about managing financial and retirement accounts, please visit our previous posts.

Reference: Spokane Journal of Business (Nov. 9, 2023) “Adding adult children to accounts can be problematic”

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The Difference Between Guardianship and Power of Attorney

November 27, 2023

Navigating the intricate landscape of elder law can be daunting, especially when faced with the decision between guardianship and power of attorney for elderly parents. This article sheds light on the difference between guardianship and power of attorney, providing clarity on which approach might be the best fit for your family’s unique situation.

What Exactly Is a Power of Attorney?

A power of attorney is a legal document that empowers an individual, often referred to as the “agent” or “attorney-in-fact,” to act on behalf of another, known as the “principal”. This authority can span a myriad of areas, from handling financial matters to making pivotal medical decisions.

Deciphering the Power of Attorney Document: The power of attorney document delineates the extent of the agent’s authority. For instance, a medical power of attorney focuses on health care decisions, while a financial power of attorney pertains to managing financial assets, like bank accounts.
The Significance of Durable Power of Attorney: This variant of power of attorney remains valid even if the principal becomes incapacitated due to conditions like dementia or Alzheimer’s disease. It’s imperative that this durable power of attorney must be prepared with precision, ensuring the agent’s ability to act remains unaffected by the principal’s mental state.

Guardianship: An Overview

Guardianship establishes a legal relationship where a guardian is court-appointed to make decisions for someone unable to do so themselves.

Guardianship Proceedings: Initiating guardianship requires one to file a petition in the probate court. If the court ascertains that the individual is no longer able to care for themselves or their assets, it may appoint a guardian.
Differentiating Guardian of a Person from Guardian of an Estate: While the former is tasked with personal and medical decisions, the latter oversees financial matters. The guardian’s responsibilities, whether it’s a duty to provide care or manage financial assets, hinge on the terms of the guardianship.

Power of Attorney or Guardianship: Which Path to Choose?

The choice between power of attorney and guardianship is contingent on the specific needs of the elderly individual.

Comparing Decision-Making Power: Both the agent (under power of attorney) and the guardian have a shared duty to provide for the best interest of the individual. However, a guardian typically possesses a more expansive level of decision-making power.
Flexibility and Autonomy: With a power of attorney, the principal gets to choose the person who will act on their behalf. In contrast, in a guardianship proceeding, the court has the final say, which might not always resonate with the individual’s preferences.

When Is Guardianship the Answer?

Guardianship becomes indispensable when an elderly parent is incapacitated and lacks a power of attorney.

The Process of Seeking Guardianship: If there’s a belief that an elderly parent is vulnerable, it becomes imperative to file a petition for guardianship. Consulting an elder law attorney can streamline the guardianship proceeding.
Guardianship vs Power of Attorney Post-Incapacitation: In the absence of a durable power of attorney, guardianship emerges as the sole recourse if an individual becomes incapacitated.

Can Power of Attorney and Guardianship Coexist?

Indeed, it’s possible to have both mechanisms in place, although their interplay can be intricate.

Roles and Boundaries: An adult child might be designated as the agent for financial matters under a power of attorney, while a professional guardian could be entrusted with medical decisions.
Harmonious Operation: Both the agent and guardian must act in the best interest of the individual, ensuring their comprehensive well-being.

Making the Right Choice for Your Family

Deciding between power of attorney and guardianship demands careful contemplation.

Engage with an Elder Law Attorney: Their expertise can offer tailored guidance, helping you traverse the complexities of elder law.
Factor in the Elderly Parent’s Desires: Their voice is paramount in the decision-making matrix, ensuring that their autonomy and dignity are preserved.

Key Takeaways:

Power of Attorney is a legal instrument allowing individuals to designate someone to act on their behalf.
Guardianship is a court-sanctioned role for those incapacitated and unable to make decisions autonomously.
The distinction between the two hinges on the individual’s circumstances and the extent of decision-making power required.
Both mechanisms can coexist, though their roles might differ.
Engaging with an elder law attorney is pivotal to making an informed decision tailored to your family’s needs.

Work closely with your estate planning attorney to ensure you understand the difference between power of attorney and guardianship. If you would like to learn more about guardianship, please visit our previous posts.

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Category: Powers of Attorney

Essential Legal Documents Graduating Seniors Need

Diverse Family Structures Have Unique Estate Planning Challenges

Updating Beneficiaries after Gray Divorce

A Psychiatric Advance Directive is an Additional tool to Consider

Alternatives to Avoid Guardianship as You Age

Estate Planning for Veterans and Active Military Is Important

Estate Planning should be a Major Consideration for Small Business Owners

Divorce Impacts your Estate Plan

Avoid Adding Adult Children as Joint Owners

The Difference Between Guardianship and Power of Attorney

What Exactly Is a Power of Attorney?

Guardianship: An Overview

Power of Attorney or Guardianship: Which Path to Choose?

When Is Guardianship the Answer?

Can Power of Attorney and Guardianship Coexist?

Making the Right Choice for Your Family

Key Takeaways:

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