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A Guide to Guardianship: Empowering Your Family to Plan for the Future

Recent news of celebrities like Jay Leno and Brian Wilson filing for conservatorship for incapacitated family members have sparked conversations about planning for the future. Leno has filed for conservatorship for his wife, while Wilson’s family has filed on his behalf due to his struggle with dementia. These cases underscore the importance of making decisions as a family, especially when it comes to caring for aging loved ones.

In New York, guardianship is a court-appointed process where someone is designated to make decisions for an individual deemed incapable of managing their personal needs or finances (in other states like California, this is referred to as “conservatorship”).

This can be a lengthy and emotionally challenging process, according to elder law attorney Michael Amoruso, managing partner, Amoruso & Amoruso LLP, and host of the radio show, “Elder Care on the Air.”

“It’s always surprising to see high-profile individual not be as prepared as you would expect,” says Amoruso. “That’s why whenever you see these situations, it’s a good reminder to have those conversations with your loved ones.”

Avoiding Guardianship Through Planning

Amoruso emphasizes the importance of proactive planning to avoid the need for guardianship, which is a complex and burdensome process involving family members who may not always agree on the best course of action for mom or dad. “Once appointed as a guardian, individuals must fulfill rigorous responsibilities, including annual accountings and court appearances. The process can be costly, time-consuming, and emotionally taxing.”

Planning involves:

  • Open communication: Discussing your wishes and concerns with loved ones regarding future care and financial management.
  • Legal documents: Having a power of attorney and healthcare proxy in place allows designated individuals to make decisions on your behalf if you become incapacitated.

“A power of attorney allows someone you trust to manage your finances—pay your bills, manage your investments—while a healthcare proxy grants them the authority to make medical decisions if you’re unable to do so yourself,” explains Amoruso. “Having these documents significantly reduces the need for guardianship, as your wishes are already documented and someone you trust can make necessary decisions.”

Benefits of Planning Ahead

“No one likes talking about mortality, but people should think about the perspective of the person making decisions on their behalf,” explains Amoruso. “Expressing your wishes around finances and health while you can ensures family members won’t have to wonder if they’ve made the right choices.”

Benefits include:

  • Reduced court intervention: By avoiding guardianship proceedings, you save time, money, and emotional stress.
  • Respecting your wishes: You have more control over your future care by appointing trusted individuals and outlining your preferences in advance.
  • Minimized family conflict: Clear communication and legal documentation can prevent disagreements and ensure everyone understands your wishes.

Taking Action

Organizations like United Hebrew, a multi-service senior care campus, offer resources and support to help families navigate these conversations and make informed decisions before crises arise, says Grace Ferri, chief marketing officer, United Hebrew.

“One of the most significant mistakes families can make is to avoid “the talk” until it becomes absolutely necessary. Experience tells us that discussing the future should happen well before a crisis arises. Starting early allows everyone involved to explore options calmly, make well-informed decisions, and ensure wishes are respected,” says Ferri.”

Both Ferri and Amoruso encourage individuals to:

  • Start the conversation: Discuss your future care preferences with loved ones openly,  honestly and with mutual respect. Avoid making unilateral decisions; instead, encourage a collaborative approach that respects autonomy.
  • Seek professional advice: Consider consulting eldercare specialists and/or elder law attorneys to understand your options and draft appropriate legal documents. Take a tour of a senior living community to check out your local options.
  • Review and update: Revisit plans, which should evolve as your parents’ needs change. This ongoing communication will help everyone involved feel more at ease with the decisions made.

By having crucial legal documents in place and engaging in open communication, families can ensure peace of mind and preserve autonomy for their aging loved ones. As Michael Amoruso aptly puts it, “Sign the healthcare proxy and power of attorney while you still can.”