How Guardianship Protects Your Finances and Right to Vote

A ward of a guardianship proceeding could lose their right to vote, which is a fundamental right for all US citizens. 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 become unable to manage them yourself. Because a serious accident can happen at any time, keep your DPOA up to date. It is especially wise to have a DPOA in place before undergoing high-risk surgery.

Guardianship

If you become incapacitated and don’t have a DPOA in place, a court will likely appoint a guardian for you. That guardian may not be the person you would choose to make important decisions on your behalf. In too many cases, older adults with declining mental faculties become trapped in guardianship situations that negatively affect them.

Since any adult can file a petition to become another adult’s guardian, an opportunistic relative could become your guardian. They could then manage your finances and make 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 your ability to make decisions for yourself would be bad enough. However, 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 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. The outcome often depends on the evaluating professional’s point of view. Additionally, judges usually have no specialised education in mental health or cognitive function.

Whether a person can handle their finances or retain the ability to drive involves very different questions from whether they retain enough understanding to vote. A citizen who votes for a winning candidate joins the majority of the electorate. Determining in advance whether a person can vote sensibly discriminates against that voter. This is especially concerning because many uninformed voters choose candidates based on whimsical attributes without facing the same scrutiny.

Planning Ahead

It’s best to avoid guardianship by completing your estate planning now. With the help of an attorney experienced in estate planning and elder law, you can create an effective DPOA. Doing so can help you 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 about issues that affect seniors who may be experiencing declining health. We help you and your loved ones prepare for potential long-term medical expenses. We also help you plan for the 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 us at (352) 565-7737. We look forward to hearing from you.