Can aging adults name their own guardians for their future care?

| Jul 14, 2021 | Estate Planning |

When age or medical conditions leave someone unable to care for themselves, they need a guardian. Typically, the Virginia courts will only name a guardian when someone has already experienced cognitive decline and lacks the testamentary capacity to act in their own best interests.

The courts become aware of that need because a family member or an unrelated professional requests a guardianship hearing. Medical evidence and testimony could convince the courts to name another adult to name a guardian to manage medical, legal and financial matters.

When someone needs a guardian, they are no longer in a legal position to choose their own guardian. Is it possible for those considering their retirement and golden years to name a guardian before they lose their testamentary capacity?

The right documents in a living will can help you pick your own guardian

Waiting until other people decide you no longer have your full faculties anymore is too late to act on your own behalf. If you plan ahead for the possibility of cognitive decline, the chances are better that the courts will uphold your wishes.

A durable power of attorney that assigns medical or financial authority to someone you trust can stay in place even after you lose your testamentary capacity. Combining powers of attorney with health care directives can effectively allow older adults to choose their own guardian and set the rules for that guardianship on their own. The documents they create can retain their legal authority even if the courts declare that adult incapacitated in the future.

A little careful planning now will protect you if your health declines as you age. Learning about the value of a living will can help you make better decisions as you create or revisit your estate plan.

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