Why Guardianship Avoidance Tools Don’t Always Work

I had some clients come in recently in need of a guardianship for a family member.  The family member was a retired professional.  He had all the right tools in place to avoid a guardianship — durable power of attorney, health care surrogate, and revocable living trust.  So why did he need a guardianship?  Because he was suffering from dementia and refused to cooperate with his family in making rational decisions that were in his own best interests.  Unfortunately, it seems to me that dementia often magnifies the worst personality aspects of some people.  When you combine a cantankerous, domineering personality with paranoia and delusion, it makes for a difficult situation.

A durable power of attorney lets you manage the person’s property, but not the person.  Sometimes I hear people say, “I’ve got power of attorney over my Aunt Ethel.”  No they don’t.  They have a power of attorney that allows them to deal with Aunt Ethel’s property.  A revocable living trust also allows the management of property but not of a person.  In the narrow area of health care and treatment decisions, a health care surrogate or medical power of attorney does give some control over the person assuming that third parties agree and cooperate.  Therein lies the rub.  Without an adjudication of incapacity, third parties my be reluctant to accept the authority of the attorney-in-fact or surrogate.  This is especially true if the incapacitated person insists that he or she is not incapacitated.  The presumption is that people are competent unless declared incompetent.

Sometimes the alleged incapacitated person has lucid moments or is able to “fake it” for significant periods of time.  This makes third parties even more leery of accepting instructions solely from the attorney-in-fact or surrogate.  Third parties who do not spend a lot of time with the incapacitated person are the most easily deceived.  Thus, you can plan and have all the right tools and still not avoid a guardianship.  The good news is that although you may not avoid a guardianship of the person, you may still avoid a guardianship of the property if you have a properly funded living trust in place.

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