At some point in your life there is a good chance that you will need to make a difficult decision regarding a parent or other elderly relative/loved one. The decision you will be faced with is whether or not to seek guardianship over the individual. Understandably, you may hesitate to take such a drastic step; however, failing to intervene could result in your loved one suffering physical injury or victimization by unscrupulous predators. If you are currently debating he need for a guardianship, understanding the advantages and disadvantages of guardianship over a loved one may be helpful.
In Missouri, you may petition a court to become a guardian, a conservator, or both over a minor or an adult. When the petition for guardianship involves an adult it is generally because the potential ward (person in need of protection) in unable to properly care for himself or herself and/or manage his or her financial affairs because of illness or a physical or mental condition. If you are appointed to be a guardian you will be responsible for making decisions that impact the daily life of the ward such as where the ward will live and what doctor the ward will treat with on a regular basis. As conservator you will handle decisions relating to the financial affairs of the ward such as what investments to make and what property to sell. You can be appointed to be both a guardian and a conservator.
Often, a guardian is needed because the ward is suffering from Alzheimer’s or another age related dementia disease. Although it may seem that stepping in takes away your parent’s ((or other loved one) independence, failing to step in could result in serious injury and/or may leave your parent vulnerable to financial scam artists.
The biggest disadvantage to guardianship is that it is the most restrictive option available. It is also, typically, the most time consuming and costly as it requires an often lengthy court process. The advantage, however, to a guardianship is that you will have the ability to care for and protect your loved one and make important decisions without being hindered and without having to seek permission each time a decision must be made.
There are alternatives to guardianship if your parent (or loved one) is still legally capable of making decisions. For example, a power of attorney could be executed that gives you authority over property and other assets. Likewise, an advanced directive can give you the authority to make healthcare decisions if you loved one is unable to make them at some point. Finally, a revocable living trust allows your parent to transfer any (or all) assets into the trust and manage the trust as the trustee, appointing you as the successor trustee who takes over upon the incapacity of the trustee. This allows a simple shift of control over assets without the need for court intervention. All of these options, however, require your parent to be of sound mind and body at the time the document is created and executed. If you have past that point, a guardianship is likely your best option.
Contact an experienced Missouri estate planning attorney for a consultation if you think a guardianship may be needed for a parent or loved one.
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