A well drafted Power of Attorney can often take the place of the need for formal Guardianship, but such a document can only be executed by someone who has the mental capacity to do so. The formal appointment of a Guardian for a minor child or an incapacitated adult requires a court order and a finding of incapacity.
Children under 18 years of age are presumed to be incompetent unless they have already been formally emancipated. Individuals 18 and over are presumed to be competent unless a court has made a determination of incapacity and appointed a guardian.
A common misperception of many is that an incapacitated individual’s next of kin (such as the parent of a child or the children of an elderly person suffering from dementia or Alzheimer’s disease) will automatically become that person’s legal guardian. To the contrary, a guardian can only be appointed following a formal guardianship proceeding before the court.
Avoiding the need for a legal Guardianship is often an important consideration of comprehensive estate planning.
Often, disputes and arguments will arise between family members over who should serve as the guardian. Sometimes, if these disputes cannot be resolved in an amicable manner, the court will simply appoint a neutral third party to serve as the person’s guardian.
As you can probably see, proper estate planning is crucial when it comes to either avoiding the need for the appointment of a guardian altogether, or at least controlling as much as possible, who would be appointed as the guardian should same become necessary.
Parents of minor children should make sure that their Wills set forth who they would want to have appointed as the guardians of their children in the event of their deaths. Likewise, we should all have well drafted Power of Attorneys as part of our basic estate plans so that, should we become disabled or incapacitated later in life, we will have already established who would act on our behalf in such event.
At American Wills & Estates we offer a full range of Guardianship and other Orphans' Court related services:
- Orphan’s Court Litigation
- Wills, Trusts & Power of Attorneys
- Comprehensive Estate Planning
Remember, the Court typically has jurisdiction over both minors and incapacitated adult individuals. At American Wills & Estates, we not only help families navigate the maze of guardianship, but we also help our clients make appropriate estate planning decisions today that will help both them and their families avoid the need for formal guardianship down the road.