Guardianships and conservatorships are established for people who need representatives to oversee their personal affairs or finances. People who are incapacitated or otherwise disabled, and who therefore cannot make important decisions regarding their care, finances, and other aspects of their life, may come under the care of a legal guardian. This relationship is established by court order, but frequently, disabled individuals may have pre-selected their guardian in their duly probated will or by having executed a durable power of attorney.
Estate Planning Pre-Selection of a Guardian
Many people decide to pre-select a guardian for themselves in the event that they are incapacitated or disabled. They might not trust the court to choose the appropriate guardian, or they simply might not want to risk such a situation. It’s generally a good idea to pre-select a guardian, if you are able.
With a duly probated will, a durable power of attorney, and a medical directive, you can outline your precise wishes, circumscribe and properly define the powers of the guardian, and choose secondary and tertiary guardians to take the place of the primary guardian in the event that the primary guardian cannot or does not want to fulfill his or her role. To help execute these documents, please contact a qualified estate-planning attorney.
Ten Considerations for Selecting a Guardian
When executing your estate plan (or if you are a family member approving a court-ordered guardian), you should give serious thought to the following considerations in selecting the guardian:
1. Does the candidate have a reputation for honesty, integrity, and timeliness?
2. Has the candidate ever been convicted of a crime?
In most states, if a person has been convicted of a felony crime, then that person is ineligible to serve as guardian.
3. Has the potential guardian managed his or her personal matters in a responsible manner?
4. Does the candidate have educational, professional, or business experience that lends itself to the performance of the duties of a guardian or conservator?
The guardian will be handling financial matters in place of the ward, from real estate, to stock investments, to paying living expenses and bills. It’s important that the guardian have the experience and skills necessary to manage these assets and ensure that the ward doesn’t accrue excess debts during the period of incapacity or disability.
5. Does the candidate have the time to devote to the required duties?
6. Is the potential guardian in good health?
To be eligible for guardianship, a person must not be incapacitated or disabled themselves.
7. Does he or she have a history of substance abuse?
8. Is the candidate likely to engender the respect, support, and cooperation of all persons affected by his or her decisions?
Guardians have a responsibility to make decisions in the best interest of the ward. If such decisions demand reasonable cooperation with third parties, the guardian must make good faith efforts to cooperate with those third parties.
9. If the ward is incapacitated, did the ward previously express his or her wishes as to whom to appoint as guardian?
10. Although not required, is the potential guardian related by blood or marriage to the ward, or does he or she know the ward well enough to carry out that person's probable intentions?
In general, the courts favor guardians who are closely related to the ward.