For those individuals who do not have advance directives, the inability to make personal and financial decisions can result in the need for a court-appointed guardian.

• Financial Decisions
• Special Needs Trusts
• Personal Decisions
• How to Become a Guardian
• Benefits of Guardianship

Financial Decisions

A guardian can make a broad range of financial decisions on behalf of an incapacitated person. The guardian is usually a family member or close friend, who can be given the power to:

• collect and invest the person's assets
• expend assets and income on any of the person's needs
• sell the person's residence
• protect the person's assets in such a way as to maximize government benefits (such as SSI and Medicaid)
• make gifts of the person's assets to his or her loved ones

Special Needs Trusts

A guardian can set up a Special Needs Trust. The trust will allow a trustee to hold the person's assets for his or her benefit without compromising Medicaid eligibility, subject to certain conditions. This is a vital planning tool for all incapacitated persons under age 65 who have assets.

Personal Decisions

A guardian can also make important personal decisions for the incapacitated person regarding routine and major medical and dental treatment; living arrangements; educational and training opportunities, and the application for government benefits including SSI and Medicaid.

How to Become a Guardian

Your attorney petitions the appropriate court and asks that the court appoint you (or, if you wish, someone else) as guardian. The court decides whether or not a guardian is needed, who should be appointed, and what financial and/or personal decision-making powers the guardian should have. Once appointed, the guardian can begin to act on behalf of the incapacitated person.

Benefits of Guardianship

• Protection of assets from loss or waste
• Access to money to make necessary expenditures
• Investment of the assets according to a prudent investment plan
• Medicaid planning
• Special Needs Trusts
• Sale of residence
• Medical and dental treatment decision-making
• Living arrangements
• Health care decisions
• Tax and estate planning
• Creation of living trusts