April 2020
Some families face the tough reality that a parent has lost the ability to handle their personal or financial affairs. They fear that their loved one is no longer fit to live alone or could lose all their money unless someone steps in and takes charge of the financial and personal duties of the parent. In the event a parent appeared mentally incapacitated, adult children may ask a court to appoint a guardian for their parent. Washington state courts appoint a guardian ad litem in every guardianship. The guardian ad litem plays a critical role in the guardianship process. If you seek a guardian for a parent, a court will appoint a guardian ad litem to act in the best interests of your loved one. Definition of a guardian ad litem According to the Cornell Law School, a guardian ad litem differs from a traditional guardian or conservator because a guardian ad litem only acts on behalf of a ward during a single case. Courts appoint guardians ad litem for incapacitated adults or for children in abuse or child custody cases. A guardian ad litem can act as a factfinder to the court, making recommendations on actions that would best benefit a ward. Recommendations for future guardianship Since appointing a guardian means removing certain rights from a ward, courts will want to know if your relative truly needs a guardian. According to the American Bar Association, a guardian ad litem may investigate the case of a ward to find out if a guardianship is necessary . If so, the guardian ad litem will make conclusions about what kind of guardianship the ward needs, the extent of the guardianship powers, and who will act as the guardian. The guardian ad litem will make these recommendations to a court. Some people have concerns about a guardian taking away too much power from a relative. The work of a guardian ad litem will help determine the needs of your relative to find a form of guardianship that is the least restrictive possible. A court is not required to follow the recommendations of the guardian ad litem, but they are often differential to the guardian ad litem as an impartial third party charged with representing the best interests of the ward.
Financial powers of attorney are one element within your estate planning package. According to FindLaw, within your estate planning package , you will have a living trust, wills, financial durable powers of attorney and healthcare directives. Financial powers of attorney are a document, which, in essence, say if you ever become mentally incapacitated, you will nominate people to make decisions for you. You may be 90 years old and suffering from Alzheimer’s, from dementia or in a coma, and thus incapable of making any decisions on your own. If you have not done this power of attorney for finance, you do not want your loved ones to have to go to court and petition the court to get permission to make decisions. The whole idea here is to keep the court out and to make it a seamless transition. If something were to happen to you, the people of your choosing can go ahead and start to take control of your finances. They can pay your bills, file your taxes and keep your business running. They will have the legal authority to do so with this document. You may choose to make a durable financial power of attorney come into effect immediately upon signing or only if you are deemed incapacitated. Several factors can determine incapacity. Sometimes a court of proper jurisdiction can deem you incapacitated. Alternatively, your primary care physician or two non-primary care physicians under oath can state that you are incapacitated. So, you would first have to be determined or considered to be incapacitated. Then, the power would shift over to the agent that you have nominated to be the durable financial power of attorney.
