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Guardianship – Not a Thriller

Posted by Great Lakes | Feb 26, 2021

I Care a Lot – the #1 movie on Netflix has many people wondering about guardianship and the real possibility of losing control of everything in life. The idea of a complete stranger in charge of your health care and living arrangements and everything you own is unsettling.  Is it possible?  Of course, it is.  There are many professional guardians who make a living by caring for hundreds of people on a regular basis.

The plot of the Netflix drama portrays the wrecking of lives by an unscrupulous guardian who, ostensibly, is able to easily manipulate the judicial system. It is also based on the premise that doctors and nursing home directors will conspire with professional guardians to steal your assets. This is pure fiction, and there are significant procedural differences in the real world.  Rest assured, a legal guardian is not going to wrongfully imprison you in a nursing home and sell all your assets to keep for themselves. They will, however, be able to decide where you live and how to pay for your care and charge you for their service.  And, unfortunately, are there are some instances of abuse by guardians, but not necessarily by public guardians.

In reality, guardianship is something to be avoided.  The process can be humiliating and expensive. When your case for guardianship is initiated, your mental deficiencies, physical needs and family relationships are discussed publicly in court.  The cost of attorney fees, guardian ad litem fees and court costs can easily exceed the senior's gross monthly income. Most importantly, if we reach a point in our lives when we are no longer able to care for ourselves, we should be able to choose the people with the authority to make decisions for us.

A properly prepared and executed health care power of attorney can avoid guardianship.

A health care power of attorney is a legal document that allows you to decide who will make decisions about your medical care when you are no longer capable of making those decisions. The health care power of attorney can also address many specific instructions about end of life treatment choices. The person who accepts this responsibility is a patient advocate.  Patient advocates are not paid for acting in this role. The health care power of attorney does not need to be registered anywhere and court involvement is unnecessary.  

While standardized forms are available through hospitals and online; caution to the unwary.  Please note, there are very specific witnessing requirements and language needed, that if not properly followed will leave you with a document that cannot be used, and a guardian may ultimately be required.  Spending a little to have an experienced estate planning attorney to properly advise you and prepare a health care power of attorney can spare you much more money in the long run, not to mention your dignity. 

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