Reckoning with the progressive cruelties of dementia is an ongoing and stressful process for impacted families. Though tendencies to deny and minimize the challenges are understandable, a proactive approach to designating decision makers to step up as necessary is generally preferable to the courtroom remedy of guardianship.
Preparing for Capacity Changes
Dementia takes many forms, and the impact can be very different. Some individuals are able to hold on to many of their decision making and independent living skills, while others decline faster. Rather than wait for the worst to happen, it’s best for families to think ahead and ensure trusted designees are at the ready to make decisions for a loved one with dementia as the need arises. There are many effective and less restrictive approaches than guardianship, but these approaches must be set up while an individual with dementia can sign off on the decisions:
Guardianship takes away a person’s right to make decisions for themselves. Whenever possible, you should explore less restrictive alternatives first. Alternatives to guardianship include:
- Medical power of attorney to manage medical decisions
- Durable power of attorney to handle financial affairs
- Establishing a special needs trust
- Designating a representative payee to receive the person’s government benefits
Informal options, like establishing a joint bank account with your family member can also be an effective alternative. If possible, talk to your family member or loved one with dementia about their wishes. If the disease has not yet affected their decision-making abilities, work with an attorney to discuss alternatives to guardianship together, such as medical or durable power of attorney or a joint bank account.
Of course, some circumstances do end up requiring court intervention in the form of the designation of a guardian. States have their own protocols related to establishing guardianship, which is “a legal relationship in which a person (the “guardian”) is appointed by a court to make decisions on behalf of another adult (the “ward”).” Based on the situation, courts can consider a full or partial guardianship, as well as these four types of guardianship:
- Guardian of the person (makes decisions about personal and medical affairs)
- Guardian of the estate (makes decisions about financial affairs)
- Guardian of the person and the estate (makes decisions about all affairs)
- Temporary guardianship
Given the seriousness of the role and responsibilities involved, courts typically require guardians to secure a guardianship bond. Essentially, a guardianship bond is a type of fiduciary bond, which protects the interests and affairs of the ward. Learn more about guardianship bonds with this short video. The requirements of guardianship bonds vary, but as a national, direct writer, Colonial Surety provides bonds to meet the specific requirements in every state. At Colonial, all fiduciary bonds, including guardianship bonds, are available directly and digitally. The steps to obtaining guardianship bonds are easy: get a quote online, fill out the information, and enter a payment method. Print or e-file the bond from anywhere—even while at court.
Obtain Guardianship Bonds Here.
Good To Do: Think Ahead
To curtail family stress–and have a say in the appointment of a guardian, it is possible to execute a POA (power of attorney) that actually expresses an individual’s wishes should a guardian become necessary down the road. For example, attorney Paul Norris of Stark & Stark offers this guidance for establishing power of attorney:
Generally, it is our recommendation that a power of attorney be prepared by a person prior to the time that they may become incapacitated in order to deal with any future contingencies. It is also suggested that this power of attorney designate the potential guardians should they become incapacitated. On the other hand, if a sudden incapacitation arises due to an unfortunate event, then the only option would be to seek a guardianship.
Family and Estate Law?
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