Key Takeaways:

• Incapacity can leave you unable to manage your personal needs or finances.
• A Declaration of Guardian lets you tell the court who you want—or do not want—to serve as your guardian.
• You can name separate guardians for your person and estate, or the same person for both.
• A Durable Power of Attorney can let someone manage your finances if you become incapacitated.
• A Medical Power of Attorney can let someone make healthcare decisions for you.
• If a court appoints a guardian, the guardianship supersedes the authority of these powers of attorney.
• A Living Trust may also help with incapacity planning.

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If you think that you are likely to become incapacitated for whatever reason, you should strongly consider signing an estate planning document called a Declaration of Guardian. [You likewise might consider getting a Living Trust] And by incapacitated, I mean that due to a physical or mental condition you become substantially unable to take care of yourself. In other words, you might not be able to provide food, clothing or shelter for yourself, take care of your physical health, or manage your financial affairs. Obviously these things need to be taken care of by someone else if/when you are unable to do them yourself.

With a Declaration of Guardian you get to tell the court who you want to be your guardian of your estate and the guardian of your person if a guardianship proceeding ends up taking place and the court does in fact end up declaring you to be incapacitated. It should be noted that the guardian of your estate and the guardian of your person can go to the same person, but they don’t have to.

Also, sometimes just as importantly, you can tell the court who should for sure not be allowed to be your guardian. Perhaps there is someone in your family who you think might not act in your best interests, might misuse funds in your bank account, etc. if they were to somehow be named your guardian.

For what it’s worth, if you have a power of attorney in place already, then that person would be able to take care of you financial affairs. However, if a court grants a guardianship of the estate, then that guardianship would overtake the power of the power of attorney. The same thing is true for a medical power of attorney. If a court grants a guardianship of the person, then that guardianship would overtake the authority of the medical power of attorney.