All US citizens have the fundamental right to vote, but if you become a ward through a guardianship process, you may lose that right. You could also lose control of your finances to someone you don’t fully trust. By nominating an agent and successor agents in a durable financial power of attorney (DPOA) document, you can avoid this unfortunate situation.
Durable Financial Power of Attorney
A DPOA is an important part of any estate plan. In your DPOA, you can name a person you trust to manage your financial affairs if you are unable to manage them yourself. Since a serious accident can happen at any time, it is important to always keep your DPOA updated. It is especially wise to have a DPOA in place before undergoing a high-risk surgery.
If you become incapacitated and don’t have a DPOA in place, a court will likely designate a guardian for you. This guardian may not be the person you would want to make important decisions on your behalf. In too many cases, older adults with declining mental faculties get stuck in guardianship situations that negatively affect them.
Since any adult can file a petition to become a guardian of another adult, an opportunistic relative could potentially become your guardian and start managing your finances and making decisions for you, to your detriment. Executing a DPOA can prevent this from happening.
Losing Your Right to Vote
Losing control of your finances and ability to make decisions for yourself would be bad enough, but you could also lose your right to vote. Guardianship laws vary from state to state, so you should consult the laws in your state. Some states, such as Arkansas, require a court to approve of a person’s ability to vote if they are the ward in a guardianship situation. Many states disqualify people who have been adjudicated as incompetent, incapacitated, or of “unsound mind” from voting.
Determining Mental Competence
The standard for deciding whose mind is unsound is far from clear. For example, a diagnosis of dementia can encompass a widely varied population, depending on the point of view of the evaluating professional. Additionally, judges usually have no specialized education of their own in mental health or cognitive function.
Whether a person can handle their finances or retain the ability to drive are far different questions from whether a person retains enough sense to vote. A citizen who votes for any winning candidate joins the majority of the electorate. Determining in advance whether a person can vote sensibly discriminates against that particular voter, especially when many uninformed voters choose a candidate based on whimsical attributes without being subjected to that kind of scrutiny.
It’s best to avoid guardianship by doing your estate planning now. With the help of an attorney who is experienced in estate planning and elder law, you can create an effective DPOA that will enable you to avoid the need for a guardian. Take the first step in your estate planning process by contacting us today to schedule a consultation.
Our law firm is dedicated to keeping you informed of issues that affect seniors who may be experiencing declining health. We help you and your loved ones prepare for potential long-term medical expenses and the need to transition to in-home care, assisted living care, or nursing home care.
This article offers a summary of aspects of estate planning and elder law. It is not legal advice and does not create an attorney-client relationship. For legal advice, you should contact an attorney.