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Why should I consider creating a pre-need guardian nomination?

Many people become less cognizant as they age. Although it is difficult to think about, mental incompetence could happen to anyone, including you. Mental incompetence could make it difficult for you to care for yourself, manage your finances and make decisions about your health care. Once legally incompetent, you will also be unable to sign legal documents.

Because age so often affects people’s abilities to care for themselves, there are several estate planning documents that can appoint someone to help, such as a durable power of attorney or a health care power of attorney. However, there are some circumstances when a court may decide that guardianship may be the most appropriate way to make sure your needs are met. To be prepared for this possibility, it can be helpful to have a pre-need guardian nomination already filed with the court.

What is guardianship?

Unlike other estate planning documents, guardianship can take away your right to make decisions for yourself and grant that decision-making right to someone else. However, guardianship is not appointed unless all less-restrictive options, like powers of attorney, are exhausted.

If you are appointed a guardian, the court will decide what actions and decisions that person has the right to make for you. However, your guardian might be able to:

  • Apply for benefits on your behalf
  • Manage your property
  • Make financial decisions
  • Determine what medical care you should receive

How is a guardian selected?

Typically, a guardian is appointed by the court. Courts must choose the guardian that it determines would be in your best interest. However, you could still end up with a guardian who you do not trust. To avoid this, you can nominate someone now, before there is a need.

Your pre-need guardian nomination can be filed with the clerk of court, and if a court determines you are legally incompetent, the clerk of court can bring out your nomination for the court to consider. If the court appoints your nominee, that person will be able to begin his or her duties immediately.

How you plan for the possibility of incompetence is ultimately up to you. However, having a pre-need guardian nomination can provide a safety net in case other, less-restrictive options end up not meeting your needs.

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