How Do I Avoid Needing A Guardianship For Myself Or A Loved One?

Posted by: Adair M. Buckner

How To Avoid Guardianship For Yourself Or An Incapacitated Loved One

Setting up a guardianship for a loved one can be a very difficult procedure for a family. Not only is it challenging to choose who the best fit to watch over an incapacitated adult, but it can also lead to heated disagreements about what is best for the very person the guardianship should protect. 

If you are older or suffering from a health condition that could put you at risk of becoming mentally incapacitated in the future, you probably worry about being a burden to your family. You also want to ensure your best wishes are respected. In the same way, if you have a loved one at risk of becoming incapacitated, you want to ensure their health and wellbeing will be taken care of when they can no longer decide for themselves.


Pre-planning is necessary to avoid needing a guardianship. People live much longer these days, and Dementia and Alzheimer's are common issues families face with loved ones or themselves. Pre-planning to deal with incapacity is very smart.

Failing to pre-plan means that it may be necessary to open a court-administered guardianship. This proceeding is very complicated, time-consuming, and expensive. The time to avoid all this is before you or your loved one becomes incapacitated. If you or your loved one are already incompetent, it is too late! Guardianship is the only option, then.

How To Draw Up A General Power Of Attorney

When you or your loved one is still competent, a statutory durable power of attorney should be drawn up to appoint an agent to act on your or their behalf. The power of attorney can become effective immediately or when you or the loved one is judged incompetent by one or more doctors. The power of attorney can be as broad or as limited as the person signing it wants it to be.

Important questions to decide in drawing up a power of attorney include whether the agent will have the power to:

  • change estate planning details
  • change beneficiaries on life insurance or accounts
  • draw up, revise, or revoke trust agreements
  • make gifts, and subject to what limitations (this can be important if Medicaid planning for the loved one becomes necessary.)

If one of the powers the agent might be called on to exercise is dealing with real estate, a special power of attorney might be drawn up for that purpose. It will need to be recorded in the real estate records of the county where any real estate is located. Title companies seem to prefer a separate real estate power of attorney.

The Importance Of Appointing Alternate Agents

Just like having an understudy in a play is crucial, it is just as important to appoint alternate agents when drawing up your power of attorney. These alternates can automatically step in if the first agent cannot act for some reason. If alternates are appointed when the power of attorney is first drawn up, it avoids having to amend or draw up a new power of attorney if the original agent can't serve. It will already be too late to appoint an alternate if you or your loved one has become incompetent. Then, guardianship may be the only option again.

Don't Wait Until It's Too Late To Take Action

This is one of those legal areas where procrastination is the enemy. Waiting too long to appoint an agent can cause you trouble and cost you a boatload of money. If you are ready to speak with an estate planning attorney about drawing up a power of attorney, please contact Adair M. Buckner today for a free consultation*.

Get A Free Consultation

*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

** This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal, or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.


I needed an attorney I could trust who could handle my legal concerns regarding my mother’s Living Trust. Adair Buckner firmly set things right. She was my voice when I had none and knew how to protect me in the midst of negative chaos. I recommend Adair to anyone seeking justice.

- Debbie -

It was way past time to finally get our Wills completed. This was something that was extremely complicated for us, but Adair and her assistant never made us feel like we were bothering them...and we (I) bothered them...a lot! Things were explained to us in a way that we could understand easily. Extremely professional and knows her stuff!

- Darla -

When my husband passed away, I contacted the attorney that we had used to prepare our wills but was unhappy with his attitude of indifference. I discovered Adair Buckner and all of my issues were resolved. Adair is professional, compassionate, and extremely knowledgeable. She saved me a large amount of money by processing my will in the appropriate manner to best suit my situation.

- Susan -

Adair Buckner has provided me with her excellent expertise in finalizing the sale of a buy/sell agreement and preparation of my Last Will & Testament. Adair efficiently applies her knowledge to your specific needs. I highly recommend her.

- Fern -

Losing my Mother and being appointed as Executor of her estate was overwhelming. Adair was very professional and personable. She handled and processed the estate with ease and kindness.

- Lydia -

Adair drew up a beautiful power of attorney and Will for my father in a timely manner. I highly recommend that you use her. She’s a wonderful lady.

- Hiram -

Trying to get our LLC changed over after moving to Texas was complicated, but Adair Buckner made the process so simple! We just gave her the details, and she handled everything quickly and professionally. Thank you, Adair, for making this part of our move stress-free!

- Barbara -

Mrs. Buckner did a full estate plan for me. Her work was excellent, her communication was great, and the price was reasonable. I would highly recommend her for your estate planning needs.

- Brad -

We appreciate Adair Buckner’s professional and personable service. Our legal needs were met promptly and succinctly. We would not hesitate (and do!) recommend her to our family and friends.

- Kristine -

This was as painless as it gets to hire an attorney in Amarillo Texas. Handled all the estate needs and never had to appear in court. You won't find any better and I use Attorneys quite often in my line of work.

- AAA Land Records of Oklahoma Inc -