Every day we make hundreds of decisions for ourselves—from what to eat for breakfast to where to vacation. However, what happens if you cannot make decisions for yourself? Who do you want making day-to-day decisions on your behalf and serving as your guardian?

If you have recently created or reviewed your estate plan, you probably discussed and signed a financial power of attorney. For those of you on the fence about completing your estate plan, this important tool allows you to authorize an individual of your choice to manage your financial affairs (for example, sign checks in your name, open a bank account, manage your real property, enter into contracts on your behalf, etc.). This can be very beneficial if you are no longer able to do these things for yourself; someone else can legally step in and handle these tasks for you immediately.

However, you may run into situations in which third parties will require the nominated individual to have explicit authority to complete tasks or manage your financial affairs in a way that is not provided through a signed financial power of attorney. In these cases, if you no longer have capacity, your loved ones may need to go before a judge and have them appoint a guardian (also called a conservator) for your benefit. This is why you should not only appoint an agent in your financial power of attorney but also nominate a guardian for yourself in case the need for one arises (if permitted in your state). This can often be accomplished through documents such as a declaration of preneed guardian (the title of this tool may vary depending on your state of residence).

A guardian is essentially a court-appointed and court-controlled agent. Depending on your state law, this person may also be referred to as a conservator or conservator of the estate. The person in this role is granted and delegated authority through the court to handle your financial affairs on your behalf if you cannot do so on your own. In many jurisdictions, if a guardianship or conservatorship is required, the court will give priority to an individual who has been named as an agent or desired guardian under a financial power of attorney, making it incredibly important that you have one prepared.

If you do not have one of these tools in place, each state has a law that defines the order of priority in which people are appointed to serve in this role. In some cases, you could end up having someone handling your affairs whom you would have never wanted, like an estranged parent or sibling. A financial power of attorney allows you to share your wishes and preferences with the court.

To ensure that you are taken care of by someone you trust when you can no longer take care of yourself in the way you desire, it is important that you choose the right person. When analyzing the pool of candidates, consider the following questions:

• Do they have the time to act as your guardian? Often, the most organized and knowledgeable individuals are also the most heavily scheduled and may not be able to step in easily.
• Do they live close by? Even in our digital world, some issues may take multiple steps or require in-person interactions to resolve. If the individual you are considering appointing lives far away, they may not be able to carry out their duties fully without unnecessary time and expense. But note that this is not always the case.
• Do they have the necessary skill set? When acting as a guardian, it is crucial that the individual you select is organized, thorough, and able to communicate clearly. A person who is scattered or is unreliable is unlikely to be a good advocate for you.

While we all want to retain as much autonomy as possible, there may come a time when we need someone to act on our behalf. Selecting the right individual to act as your advocate and ensure that you are taken care of according to your wishes is especially important. If you have any questions or would like to discuss whom you should appoint for this role, contact us. We are here to help.