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Can I Do Anything Now to Avoid Guardianship When I Am Older?

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While it may be uncomfortable to think about a future in which you are unable to make decisions for yourself, that possibility becomes increasingly real as you age. Should you become incapacitated without the proper legal documents in place, your loved ones may need to seek guardianship through a Vermont court to obtain the authority needed to manage your affairs. Fortunately, with proper planning, you can avoid that outcome. By taking steps now, you retain control over who will make decisions for you and how those decisions should be made if you become unable to speak or act for yourself. With that in mind, an experienced attorney can help guide you through the process of planning ahead to avoid guardianship in Vermont.

Understanding Guardianship in Vermont

Guardianship is a legal process through which the Probate Division of the Vermont Superior Court can appoint someone to make decisions for an adult who has become incapacitated. That individual is referred to as a Guardian, and the person under guardianship is known as the Ward. Vermont law allows a Guardian to be appointed for the person, the estate (meaning the Ward’s financial matters), or both. This arrangement may be necessary if a person is no longer able to manage personal, financial, or healthcare decisions and no prior planning documents exist.

To initiate guardianship, a family member or concerned individual must file a petition with the court. The court will then evaluate the evidence and may hold a hearing to determine whether the proposed Ward is in fact incapacitated. If the court finds that the person cannot make or communicate informed decisions, it may appoint a Guardian to act on their behalf. This process can be time-consuming, emotionally difficult, and public in nature. Once guardianship is in place, the court retains authority to oversee the Guardian’s actions, often requiring reports, accountings, and other administrative tasks.

While guardianship is sometimes necessary, it can feel intrusive and may not reflect the incapacitated person’s wishes. For this reason, many individuals in Vermont are choosing to create an estate plan that includes tools specifically designed to avoid guardianship.

Planning Tools to Help Avoid Guardianship in Vermont

Several legal instruments can help you avoid the need for a court-appointed Guardian, instead allowing you to choose someone you trust and define the scope of their authority, all while preserving your dignity and preferences. These tools include:

  • Power of Attorney: A Power of Attorney (POA) is one of the most important tools in incapacity planning. By executing a POA, you authorize another individual—your Agent—to act on your behalf in financial and legal matters. A durable POA remains in effect even if you become incapacitated, allowing your Agent to pay bills, manage investments, handle taxes, and take care of your financial affairs without court involvement. You may choose to create a general POA that grants broad authority or a limited POA that is restricted to specific actions or timeframes. It is important to select someone who is trustworthy, responsible, and capable of handling financial matters carefully. In Vermont, your POA must be properly executed in accordance with state law to be valid.
  • Advance Directive for Health Care: In Vermont, you can create an Advance Directive for Health Care that allows you to name a health care Agent and provide instructions about your medical care if you become unable to express your preferences. This document combines the functions of a Health Care Proxy and a Living Will and is recognized under Vermont’s Advance Directive law. Your health care Agent can communicate with doctors, consent to or refuse medical treatment, and ensure that your medical wishes are followed. You can also include instructions about end-of-life care, life-sustaining treatment, organ donation, and more. With a properly executed Advance Directive, your loved ones will have clarity about your wishes and the legal authority to carry them out.
  • Revocable Living Trust: A Revocable Living Trust is another effective way to avoid guardianship, especially when it comes to managing assets. When you create a trust, you typically name yourself as the initial Trustee, allowing you to retain control over your assets. You also appoint a Successor Trustee to take over management of the trust if you become incapacitated. Because the assets held in the trust are legally titled in the name of the trust, the Successor Trustee can immediately step in without court involvement. This arrangement allows your finances to be managed smoothly, privately, and without the delays or costs associated with guardianship.

Can We Help You Avoid Guardianship in Vermont?

For more information, please attend one of our upcoming FREE webinars. If you would like assistance avoiding guardianship in Vermont, contact an experienced Essex Junction elder law attorney at Unsworth LaPlante, PLLC by calling 802-879-7133 to schedule your appointment today.

Wendy S. Hillmuth
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