A guardianship should be a last resort. A guardianship is court-ordered supervision over your life, your medical care, and your finances. I have great respect for judges, but no judge can ever know your wishes or your family as well as you do. You need to put a plan into place to ensure that you are well cared for and have the best quality of life when you are no longer capable of managing your own physical, medical, and financial matters.
In Ohio, a court appointed guardian should not be necessary if you have a proper estate plan in place. An estate plan can seamlessly provide for that period of time when you are alive, but unable to manage your own affairs. Your successor trustee and power of attorney can seamlessly step in to manage your assets and property without having to slog through the court system.
By creating an estate plan that includes disability planning, you can choose who manages your affairs, instead of leaving that decision to an unknown judge. You know who in your life is best with finances, knows your wishes, and will be there for you. You can hand-pick that person to step in to take care of your finances. You can talk to them now about what your wishes are, where you want to live, and how your assets are to be spent.
By creating a trust-centered estate plan, you can impose controls upon your agent that might not otherwise exist. For example, you can direct them to provide accountings to certain people that might not be entitled to them under state law (such as a significant other, friend, or professional advisor). By creating a trust-centered estate plan, you can also give your agent the freedom to do certain things that would otherwise require court-approval, like: making gifts to your children or grand-children; selling or renting your home; taking a loan out to cover your expenses; or even operating your business.
Additionally, a proper estate plan should include the authority for your loved ones to deal with your health care. In addition to the health care power of attorney, which gives another the ability to make medical decisions if you cannot, a proper plan should address HIPAA privacy matters. A HIPAA release can allow a broader class of people to talk to the doctor, even if they cannot make medical decisions for you. You should also have a living will setting forth your preferences concerning life prolonging medical treatment and organ donation.
No estate plan should ever be focused solely on death planning. Instead, a good estate plan should always provide for your care while you are alive, but unable to manage your personal and financial affairs. It is key to seamlessly provide for your care, both physical and financial. If those pieces are in place, then you and your family may be able to entirely avoid the cost, delay, and the trauma of a court-ordered guardianship. You can put into place a plan that reflects what you want, and who you want to care for you.
Paul Kellogg is an attorney in Cincinnati with the Phillips Law Firm, Inc. Paul’s practice focuses on providing comprehensive estate planning and probate services to families and business owners, as well as serving as outside general counsel to entrepreneurs and businesses where he provides guidance and advice on a wide variety of transactions and disputes. He can be reached at (513) 985-2500 or via email at [email protected]. Please explore Paul’s other articles on estate planning and business on the Phillips Law Firm Blog page.
The article is for educational and informational purposes only and does not constitute legal advice. Anyone contemplating taking legal action is urged to obtain proper legal advice from an attorney licensed in your particular jurisdiction.
