Eleanor Roosevelt once said, “Today is the oldest you’ve ever been, and the youngest you’ll ever be again.” Unfortunately, no one has found the cure for aging and as we get older our bodies and mind can begin to deteriorate. A guardianship is a legal proceeding commenced by a loved one, nursing home, or friend because they believe that a person can no longer take care of their personal needs or their financial affairs. The person commencing the proceeding is called the petitioner and the person who the proceeding is regarding is called the alleged incapacitated person or AIP. During this proceeding, the petitioner must prove by clear and convincing evidence that the alleged incapacitated person has functional limitation and is in fact incapacitated and in need of a guardian.
Guardianships are expensive and when contested can become very costly. A guardianship may not be necessary with proper estate planning. A person can plan for their potential incapacity and have an agent appointed for their financial affairs by executing a durable power of attorney. They can plan for their personal needs by executing a healthcare proxy designating an agent to make medical decisions in the event of their incapacity. All in all, proper estate planning is necessary and can possibly help prevent an expensive guardianship proceeding.
