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Robert S. Duxstad
Daniel P. Bestul
Lance A. McNaughton

Guardianship - A Valuable Last Resort

Posted: 10.24.2014  |  Author: 

A conversation about guardianships is common in estate planning, especially for younger families who have or are anticipating children. In fact, the nomination of guardian – someone to exercise legal authority over their minor children when parents die or are otherwise absent – is one of the most important reasons for younger adults to create a Will. Children lack independent legal authority to make health care decisions, enter into contracts, get married, vote, and apply for certain government licenses, to name a few. A parent or legal guardian has to handle those responsibilities for the child, or provide appropriate consent when necessary. In a Will, a parent can designate the individual(s) they think will best handle that responsibility. It’s a smart and easy way to secure peace of mind, as it guarantees that someone you trust will guide your children if you cannot.


The issue of guardianships is more complicated when we apply it to adults. The basic concept is the same: for various reasons, an adult can be rendered incapable of handling important legal rights and responsibilities. This might be the result of an accident, or a medical event like a stroke or the onset of dementia. For some, with developmental disabilities, the incapacity is the result of a life-long condition or trait; as a child, the individual would have adequate protection and assistance from a parent. However, that parent’s legal authority over a child ends when the child turns 18, and then a legal guardianship becomes necessary.


The challenge with adult guardianships is that, while they give someone the authority to provide for the care of an individual, and to manage that individual’s property and rights, they simultaneously take that authority from the individual needing assistance. The removal of legal rights, including the rights to vote, to control personal finances, to select living arrangements, and to marry, is why court action is necessary to create a guardianship. A judicial hearing provides due process of law, which is essential before legal rights can be taken. The offering of due process, however, provides little consolation to those whose rights are being taken.


That’s why there’s a growing sensitivity to what the loss of independence and autonomy can mean to an individual, and a movement toward preserving the legal rights of those traditionally needing the assistance of a guardian. Significant changes to Wisconsin’s guardianship laws within the last ten years provide for more nuanced guardianships that allow wards to keep as many rights, and to be involved in as many decisions, as possible. Someone might lack the competence to make complicated medical decisions, but still be able to make decisions about where they live and travel, who they marry, and what to include in a will. The system now places a much greater emphasis on what the individual CAN do, as opposed to what he or she cannot.


The changes to Wisconsin law reflect the priorities of a movement toward supported decision-making. Supported decision-making maintains that the goal of any support program should be the offering of assistance to those who need it in order to understand the situations and decisions they face, so that ultimately they can make those decisions and address those situations themselves. This approach isn’t practical for everyone, but it does recognize that the objective in many cases should be support and empowerment, rather than the taking of legal rights as a means of protection.


The creation of powers of attorney is another means of reducing the need for or the scope of a guardianship later in life. Powers of Attorney give the individual of your choice the authority he or she needs to handle your financial matters or make your health care decisions, but without giving up the legal right to do so yourself. Many times, the authority contained in these documents provide family members or a close friend (the agent) the means to protect a loved-one without resorting to a guardianship. If a guardianship becomes unavoidable, Wisconsin law provides that the court should appoint an individual’s chosen agent under a power of attorney to be the guardian, whenever that’s possible. In this way, the individual needing a guardianship is assured a say in who that guardian will be, even after they lose the capacity to participate in that decision. Powers of Attorney are a common part of the estate planning process, and can be completed with minimal cost.


Guardianships are an important means of providing for the safety and wellbeing of those who are most vulnerable. Like any legal protection, however, no one idea is right for everyone. By being proactive, individuals can provide for their own wellbeing through some simple estate planning with an experienced attorney. And when advanced planning isn’t possible, a full guardianship should never take priority over alternatives that recognize the unique abilities of the individual needing help.


Lance A. McNaughton practices estate planning, probate, business, and real estate law, including landlord-tenant cases, in both Lafayette and Green Counties in Wisconsin. He can be reached by e-mail at mcnaughton@duxstadlaw.com.


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