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If I have a good estate plan, can I avoid a guardianship proceeding altogether?

Guardianship attorney Kevin Wimmer meeting with clientsFor the most part, yes. But as is always the case, the answer is “it depends.” As in cases where an estate plan is not updated to adjust to changing life circumstances. An estate plan is never a “set it and forget it” type of thing. Here is one example:

A married couple in their sixties, nearing retirement, with one adult daughter makes an estate plan. As part of the estate plan, the couple appoint each other the agent on their respective Powers of Attorney, and their adult daughter as the only successor agent.

In the ensuing years, their daughter predeceases each of them. Many years later, now in their 80s, the husband becomes incapacitated, and while serving as the husband’s agent under the Power of Attorney, the wife (the “caretaker spouse”) dies. In this tragic, but not uncommon example, the last to survive is incapacitated, with nobody authorized to manage his affairs through the Power of Attorney. A guardianship will need to be created to manage the health and finances of the surviving husband.

Importantly, it should be noted that even this example could have been avoided if the couple simply updated their Power of Attorney at the death of their daughter by adding one (or two) successors (i.e. grandchildren, nieces, nephews, etc.). The takeaway being that an estate plan needs to be revisited by everyone in order to account for the various changes in circumstances life brings.

Further, one of the key ways to avoid a guardianship is by creating a durable power of attorney.  This document allows the person of your choice the ability to make your legal and financial decisisons. Here, you can read about how a good durable power of attorney has its own limitations in preventing a guardianship.  

Another key aspect of estate planning involves elder exploitation. Here, you can learn about how a good estate plan can help prevent elder exploitation.

If you need help updating your estate plan, elder exploitation or have questions about guardianship for your loved one, please do not hesitate to contact us.

Kevin J. Wimmer
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Florida Guardianship and Probate Attorney