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How to Avoid a Guardianship

by Phil Levin, Esq. on February 1st, 2019
Guardianship

Let me get straight to the point: A Guardianship Proceeding, held before an Orphans’ Court Judge in the County where you reside, can be a very costly, stressful, and embarassing public proceeding.

Fortunately, Guardianship hearings can be completely avoided by having valid, well-designed Financial and Health-Care Powers of Attorney that are drafted in accordance with state laws and signed while the Principal is legally competent and acting on their own free volition.

Guardianships are Court sanctioned proceedings where any interested person can Petition the Orphans’s Court to enter an Order of Court which declares another person to be incompetent and incapable to manage his or her own personal health-care and financial affairs.

After a Guardianship Hearing, if the person is deemed incompetent, the Judge will appoint the Guardian. In some cases, the Guardian may be a trusted family member. However, Orphans’ Court Judges have broad discretion to appoint an independent third party to serve a Guardian.

In fact, in many cases, the Guardian appointed may not be a family relation, especially when there are no family members who desire to become the Guardian,bwhen there one or more parties contests the appointment of a Guardian, and where the Guardian’s ability to care for the person is,seriously questionable. But one thing is for certain — once a person is deemed “incompetent”, he or she has no control over who the Guardian will be currently or in the future. Such action is not acceptable to most people, since the vast majority of individuals desire to have control over their personal, health-care, and financial affairs.

For example, imagine someone you have never met is now completely controlling your estate — including all of your financial resources, your health-care decisions, and where you will live. Further, imagine your Guardian having the power and authority to decide when your family, friends, and loved ones can see you, if they are allowed to visit you at all.

Check out the name “Gloria Byars” on Google, and you will find several articles during this past year. Ms. Byars was the Court appointed Guardian for more than 100 individuals, yet had a long criminal record of committing fraud. With little oversight, Guardians, like Byars preyed (and still prey) upon the elderly, who often engage in unscrupulous activities, and who defraund or dissipate the assets of individuals who are declared incompetent by a Judge.

Recently, Pennsylvania legislature has signed into law new rules that take effect for Orphans’ Court Judges to follow when ruling in Guardianship cases. These new rules are intended to make the requirements for serving as a Guardian more stringent. In effect, the new law is designed to reduce, or weed out, some of the bad apples, but the system is slow to change and fsr from perfect. Therefore, it is very wise for you, and your loved ones, to completely avoid a Guardianship proceeding, whenever possible.

Therefore, do not procrastinate, by waiting until it’s too late for you and your family members to have a competent estate planning attorney design and implement valid Powers of Attorney for you. These core and comprehensive estate planning legal documents include your:

– Durable Financial Power of Attorney

– Health Care Power of Attorney, and

– HIPAA Waiver Authorization.

These are the three (3) legal documents that allow you to completely avoid a Guardianship Proceeding, by appointing one,or more people who you decide to step into your shoes and take care of your personal, financial, and health-care affairs, in the event that suffer an illness, injury, or incapacity, whereby you are unable to make important financial and health-care decisions for yourself.

With valid and up-to-date Financial and Health-Care Powers of Attorney in force, you can have peace of mind, and sleep well at night, by knowing exactly who will oversee your investments, and make prudent financial decisions on your behalf, in the event that you suffer a temporary or permanent disability.

Select your own Financial Agent and Health-Care Agent to serve under your Powers of Attorney, by personally deciding who are financially responsible individuals who you trust now to protect you, if something happens tomorrow, when you are not in a position to make extremely important decisions for yourself.

The Levin Law Firm regularly works with individuals to design and implement Powers of Attorney which are appropriate for our clients, in addition to drafting other vitally important trust and estate planning documents.

Since procrastination is the enemy, the best time to act is now, while the purpose and benefits of estate planning legal documents are fresh in your mind.

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