People often do not understand that establishing a guardianship over a person is an expensive, time consuming and embarrassing court process. It can be necessary even when a married person is incapacitated and the spouse needs to take action regarding the home or assets in the incapacitated spouse's name. Many people are unaware that a guardianship can be avoided by executing Durable Powers of Attorney.

A Durable Power of Attorney is a low-cost option compared to a guardianship. If the power of attorney is expected to be valid after a person has become incapacitated, it must be durable, which means it must contain certain required language. Executing a Durable Power of Attorney puts you in charge of deciding who will make your health care and financial decisions if you are no longer able to do so. For example, if you are in the hospital for a long period of time, your Agent (the person you named in the Durable Power of Attorney to make decisions for you) would be able to pay your monthly bills and execute documents on your behalf.

If you become incapacitated or no longer possess the ability to make financial or health care decisions for yourself and you have not executed Durable Powers of Attorney, a guardianship would become necessary. There are different types of guardianship. There is guardianship of the person, guardianship of the property or both. The Court will determine the appropriate type of guardianship.

The proceeding commences upon filing a Petition to Determine Incapacity and a Petition to Appoint Guardian. The Court appoints three people as an examining committee, consisting of medical professionals and a person who is familiar with the type of incapacity. The court also appoints an attorney for the “Alleged Incapacitated Person." These safeguards are intended to protect the person’s rights.

Guardianship can be avoided by taking precautionary measures and executing Durable Powers of Attorney.