Estate planning is not only about planning for one’s death. It can also include planning for when one becomes incapacitated in Massachusetts or in any other state. When a person is found incapable of making decisions for himself or herself, the court will appoint a guardianship over the person. This means an individual is given the power to make decisions for the incapacitated person.
Sometimes the court will appoint two different guardians for an incapacitated person. One guardian would be in charge of making decisions regarding the person’s assets. The second guardian would be responsible for all other decisions, including medical decisions. A court-appointed guardian could be a professional trained to take care of incapacitated adults or an organization designed to do the same thing.
However, most people do not want the court to decide who will make decisions for them when they are incapacitated. In order to avoid having a court assign a guardian is to integrate one’s wishes into one’s estate planning documents. There are a variety of legal documents which could specify who should be in charge of making decisions in case of incapacitation. Some of these documents include a trust, durable power of attorney as well as an advance health care directive.
However, in order for these legal documents to prevent a court-appointed guardianship the documents must be legally enforceable in Massachusetts. Sometimes these documents may be challenged in court, which means the language used to draft the documents must be legally sound. This will require thorough knowledge of contract law as well as applicable estate planning rules and regulations.
Source: heraldtribune.com, “What you need to know about guardianship,” July 21, 2013