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How a power of attorney can protect people from guardianship

On Behalf of | Aug 21, 2023 | Estate Planning |

It is a well-known fact that many people experience cognitive decline as they age. Some older adults develop Alzheimer’s disease or other medical conditions that cause dementia. Many others simply struggle to remain organized and to handle their responsibilities as they age.

Kentucky law allows both concerned professionals and family members to go to court to intervene when an older adult is incapable of managing their own affairs. People can obtain guardianships or conservatorships that diminish an older adult’s independent authority and give other people access to their resources and/or control over their decisions. Those who are concerned about having certain people take over their affairs can use estate planning to avoid involuntary guardianship or conservatorship in favor of an arrangement that is more in-line with their needs and preferences.

The right documents can make a big difference

People no longer have the legal authority to enter into binding contracts once they begin experiencing cognitive decline. The courts in Kentucky will not uphold documents drafted or signed by someone lacking legal testamentary capacity. However, documents that they drafted before they developed dementia or other health concerns could continue to influence someone’s life indefinitely. Those with durable powers of attorney have less reason to worry about a future guardianship or conservatorship.

Durable powers of attorney differ from basic powers of attorney because they retain their authority even when the courts declare someone permanently incapacitated. The agent or attorney-in-fact that someone selects can fill the same role that a guardian or conservator would by managing someone’s finances and making major decisions on their behalf. Instead of being at the mercy of whatever individual decides that a guardianship might be necessary, an older adult who already has durable powers of attorney on record will have effectively selected their own guardian. The agent handling their affairs can manage their matters without requiring court intervention in most cases.

Almost every adult can benefit to some degree from estate plans that include living documents like durable powers of attorney. They can even be useful for young adults and professionals just starting out in their careers. Adding the right paperwork to one’s estate plan can help protect people from both predictable and unpredictable challenges that may arise later in life.