Sometimes loved ones with mental or physical disabilities lack the cognitive capacity to make decisions, but did not, or could not appoint someone to assist them while they had the ability to do so. Without Powers of Attorney or other appropriate Estate Planning documents, a spouse or other family member of an incapacitated person may not have the legal authority to assist their loved one with important decisions.

To ensure an incapacitated person’s affairs are handled effectively, the Court may appoint a guardian to manage personal, healthcare and/or financial matters.  This proceeding involves an investigation by a neutral party ( the “Guardian ad Litem”) who reports to the Court whether or not there is an alternative to a guardianship, if a guardianship cannot be avoided what limitations should be made to it, and who should be the guardian.

Once a guardian is appointed, the guardian has a duty to make decisions that are in the best interest of the incapacitated person, with consideration for what the incapacitated person would have wanted when he or she had capacity. The guardian also has a duty to manage the guardianship assets with great care. In order to retain the authority to act, the guardian has to maintain records and prepare reports for the Court on a regular basis.

Since a guardianship can be costly to establish and maintain, it is better to prepare for future incapacity by preparing an effective Estate Plan with the assistance of an attorney.