Why we should avoid Guardianship

We often hear about people investing in an estate plan to avoid probate.  We hear less about people undertaking the proper planning to avoid court intervention during life.  If a person loses capacity and has not appointed a decision-making agent, a legal guardianship proceeding will be necessary, and the court will need to appoint a guardian to make decisions on the person’s behalf. This can be a bad idea for many reasons.

The primary reason to avoid guardianship is so YOU can choose who makes decisions for you in the event of your incapacity. The decisions a guardian makes for his or her ward include health, financial, and living arrangement decisions. The court does its best to appoint a guardian who will act in the ward’s best interest. However, most people would have preferred to choose who that person is, instead of letting a court decide. 

Another reason to avoid guardianship is the cost. If a person needs to make a decision and it is discovered that he or she does not have capacity to do so, often a family member must petition the court for guardianship.  That person is left to either start the court action on their own and proceed pro se (without an attorney), or to hire an attorney.  This can be costly.  Even if the person does not hire an attorney, in Wisconsin, a guardian ad litem is appointed by the court to represent the proposed ward’s best interest.  The guardian ad litem is also an attorney, and he or she also must be paid as well.  If the proposed ward’s assets are not sufficient to cover this expense, the petitioner may be ordered to pay these fees.  

If those two reasons are not enough, consider your family situation. If a guardianship proceeding on your behalf occurs, will your family and friends agree as to whom should manage your assets and make medical and personal decisions for you? If there is even the slightest chance they will not, you should be making the decision ahead of time. If not, there could be a contested court hearing in which your relatives will fight over who should serve as your guardian.  These can get ugly and are best avoided.