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A guardianship is a court proceeding in which a person is declared incompetent by a court and a guardian is appointed by a court to have the care and custody of the person or of the estate, or both, of an incapacitated person. A guardianship is a public court proceeding that may be avoided, in most cases, by having a power of attorney executed as a part of your estate plan.

Without a durable power of attorney in place, a guardianship is sometimes needed when an incapacitated person is unable to manage their own affairs. Oftentimes, a guardianship is sought when an individual is unable to pay their own bills or properly manage their financial affairs, needs to be transferred to a short or long term care facility due to failing health, or there is a dispute regarding an individual's health care or financial needs. When there is no proper estate plan in place, no one is authorized to make decisions on the incapacitated person's behalf, and therefore a guardian might need to be appointed.

A court hearing is required to initiate a guardianship where the alleged incapacitated individual has the right to be present, be represented by counsel, present evidence, cross-examine adverse witnesses, remain silent and require the attendance of the medical professional who prepared an evaluation. If it is found that the individual is substantially without capacity to care for himself or his estate, a guardian for the person or estate, or both shall be appointed.

It shall be the duty of the guardian of the person, consistent with and out of the resources of the ward's estate, to care for and maintain the incapacitated individual. A guardian of the estate is responsible to exercise due care to protect and preserve the estate; to invest it; to account for it faithfully; and at the termination of the guardianship, to deliver the assets to the persons entitled to them. Guardians have the duty to report to the court, at regular intervals, or as the court may direct.

Alternatively, a durable power of attorney is a document by which you delegate to another person or institution the authority to act for you if you are disabled. However, a power of attorney must be executed while you have the capacity to execute a legal document. Proper estate planning can minimize the need for court oversight in your personal or financial affairs.

Tiffany Tucker is an associate attorney at Farrar & Williams PLLC and can be contacted at 501-525-4401 or by email at [email protected] She can answer any questions you have about this subject. Call today to schedule a phone or video conference.

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