One often overlooked area in estate planning is the possibility that one becomes incapacitated and are unable to manage their day to day affairs. If a person has no documents that point to an alternative option, then the likely scenario is to initiate Guardianship Proceedings. Guardianship is a legal determination that an individual lacks the mental capacity to care for his or her person or property. A Guardian can have the ability to control a person’s property, their Person, meaning taking away a person’s power to make basic daily decisions, or both. Essentially, when a Guardian is appointed, a person can lose control of their lives. A person can lose many rights including but not limited to: The right to marry, right to vote, the right to a driver’s license, the right to travel, the right to manage your own property, to consent to medical and mental health treatment, and other social aspects about a person’s life. The decision of determining a person’s guardian is up to the judge. To avoid guardianship and the negative consequences that come with it, a person can have a Durable Power of Attorney and a Designation of Health Care Proxy.

A Durable Power of Attorney permits someone to handle an individual’s financial affairs when the individual becomes incapacitated. A Durable power of attorney appoints a person as an agent for the person signing the power (the principal) and authorized the agent (attorney in fact) to step into the shoes of the principal in handling the financial affairs. An advantage is it helps avoid guardianship upon incapacity. The Durable Power of Attorney remains effective after the principal becomes incapacitated. A Durable Power of Attorney can be broad and give as many powers as one may like or can be narrow and give less powers to the agent. For example, a power could authorize an agent to act for the principal in all financial transactions or in only in some specified transactions.

The most crucial decision when deciding to execute a Durable Power of Attorney is determining who should be chosen as the agent. Frequently, the choice falls on a family member or friend. But, the most important factors to consider when determining are honesty and competence. This is because the agent is not supervised by the Courts which leads to huge potential for abuse. One means of dealing with the concerns as to honesty and competence of the agent is to require the signatures of two individuals on the power of attorney. A final factor that should be considered is whether the person’s other family members have confidence in the agent.

A Designation of a Health Care Proxy appoints an individual as an agent to make decisions regarding health care. If the principal is unable to make such decisions or unable to communicate decisions to health care providers, then the agent can make the decisions for the principal. A health care proxy generally contains no specific instructions as to which health care measures should be provided or withheld. The document simply authorizes the agent to make all necessary decisions in accordance with the wishes that the principal has communicated to the agent.

Therefore, Guardianship can be extremely costly and be subject to the scrutiny and supervision of the Court. All financial and medical decisions upon incapacity can be addressed by completing a Designation of Health Care Proxy and a Durable Power of Attorney. The importance of planning for incapacity and Guardianship was also featured on HBO on an episode of Last Week Tonight with John Oliver. The episode highlights the negative consequences of Guardianship and how a person can easily be taken advantage of through their incapacity. The link to the video is


For more information about this or if you’re interested in having an estate plan to address these concerns please contact Grant Cottrell, PLLC at (239) 649-4848 or go to our website