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Guardianship vs. Less-Restrictive Alternatives: Navigating Legal Options When Caring for an Incapacitated Loved One

Posted Wednesday, June 5, 2013 by Brian Edwards

alt text When a loved one becomes incapacitated by sudden illness or an accident, the first question asked by a client is typically how to continue taking care of that person and their affairs. This concern is especially common in situations where an incapacitated individual did not have a durable power of attorney at the time of incapacitation, or if there are conflicting views regarding an individual’s care.   One option is to seek out a guardianship. A guardianship is a court procedure in which a person is appointed the legal guardian of an incapacitated individual and is granted decision-making power over their personal and financial affairs.  Although a guardianship is a more restrictive arrangement, it may be necessary to protect the incapacitated individual from harm and to ensure that they are adequately cared for. A guardianship may be appropriate in a variety of situations, including:

  • The individual had no durable power of attorney and is now incapacitated;
  • No less-restrictive alternatives exist;
  • Family members or people who have authority over the individual are abusive or untrustworthy;
  • An individual is incapable of making personal and financial decisions and requires someone else to make necessary decisions for them

Because guardianships are invasive proceedings, courts commonly prefer less-restrictive alternatives.  One such alternative is a Durable Power of Attorney (“DPA”), a document through which a person gives someone else the legal authority to act on their behalf, as their “attorney-in-fact.”  The DPA may be written to take effect immediately or at a later date, when the person becomes incapacitated.  Additionally, DPAs are simpler, less expensive to prepare than a guardianship, and do not require court action. Other less-restrictive alternatives that may also be applicable in similar situations are trusts and joint property arrangements.

If you believe that someone you know is in need of a guardian or a less-restrictive alternative, contact Pivotal Law Group, PLLC today. We are happy to assist you in determining the best course of action for you and your loved one.

For further information, contact Emily Rao at (206) 340-2008.

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