The need for a guardianship really depends on the facts and circumstances of each case, however, many guardianship cases result from the absence of a properly drafted power of attorney (“POA”) and statutory gifts rider (“SGR”). In order to sign these documents, one must possess contractual capacity. Most people diagnosed with the onset of dementia or Alzheimer’s still have contractual capacity. If, however, a diagnosis is received mid to late stage, capacity might be diminished. Determining capacity from a legal perspective involves the judgement of the attorney and follows a series of questions asked by the attorney.
The underlying circumstances giving rise to the need for a POA, SGR or guardianship are usually centered around financial transactions. For instance, a person having Alzheimer’s might need care, whether at home or in a nursing home, and in order to pay for the exorbitant costs of such care, Medicaid eligibility is sought. Medicaid eligibility involves accessing the applicant’s financial assets and moving those assets to family members or trusts. If the applicant no longer has the requisite capacity to sign a POA or SGR, which would give another person the ability to handle these financial matters, a guardianship is needed.
Guardianships can be avoided with advanced planning. If you or someone you know has the onset of a cognitive impairment, it is imperative that you contact us to draft a POA and SGR. In the absence of those documents, we can be retained to commence a guardianship proceeding.
In certain circumstances, a revocable living trust must be strongly considered. To determine if a revocable living trust is an appropriate necessity, one must first understand its purpose. Unlike a Last Will and Testament (“Will”), a revocable living trust does not need to be probated upon one’s death. Probate is the legal process of going to Court to prove that the decedent’s Will is valid, culminating in the appointment of an executor. Many people do not realize that an executor named in a Will has no authority until the Court officially says so. Generally, if one dies having a Will and with assets in their sole individual name without beneficiary designations (i.e., outside of those specified in their Will), their heirs will be subjected to the probate process. Read more