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Can estate plans interfere with attempts to secure guardianship?

On Behalf of | Apr 10, 2024 | Guardianship

People who are coping with major medical challenges sometimes become incapable of properly providing for themselves. For example, older adults may struggle to make the best choices about the medical care that they receive because they focus too much on avoiding a diagnosis related to a condition that could affect their personal liberties, like Alzheimer’s disease.

Issues with memory and cognition might affect someone’s ability to consistently meet their financial obligations in a timely fashion. The law in Virginia does allow concerned individuals to seek conservatorship or guardianship when someone struggles to meet their own needs.

Do those seeking authority over a vulnerable adult need to worry about an estate plan interfering with their efforts?

Some people plan to avoid guardianship

Virginia allows those who have not yet lost their testamentary capacity due to cognitive decline to create a variety of different legal documents for their protection. Those documents may include durable powers of attorney.

People can effectively name someone that they trust to take responsibility for their finances or to oversee their medical care. Provided that someone has drafted the right documents and that the agent or attorney-in-fact they selected is able and willing to assume that authority, the existence of such estate planning documents could complicate attempts to secure guardianship or conservatorship.

Standard powers of attorney may lose their authority when someone becomes permanently incapacitated, while durable documents do not. Therefore, those seeking to act on behalf of a vulnerable family member may need to look carefully at their estate planning paperwork.

Understanding what effects guardianship and conservatorship efforts can have may be beneficial for those worried about vulnerable family members. Protecting someone from their own decline sometimes requires assertive legal action.