Jillian Mastroianni (00:00):

Guardianship. Probate court. Powers of attorney. These terms can feel intimidating—but they don’t have to be.

After Friday’s episode with Judge Hedrick, Jazmine from New Jersey wrote in with an important question: how can she take care of her dad as he ages without ending up in probate court?

In today’s episode, I break down the difference between a power of attorney and a guardianship—and share practical steps you can take now to lower the chances of a costly, stressful court process later.

Welcome to the Death Readiness Podcast. This is not your dad’s estate planning podcast. I’m Jill Mastroianni, former estate attorney, current realist, and your guide to wills, trusts, probate and the conversations no one wants to have. If your Google search history includes, “Do I need a trust?” “What exactly is probate?” and “Am I supposed to do something with mom’s Will?” you’re in the right place.

(00:37) I started practicing law in 2012, and my very first court proceeding was a conservatorship case. It was uncontested — a woman in her sixties was seeking a conservatorship over her adult son who had Down Syndrome.

Considering that my older brother has Down Syndrome — and that my parents had already gone through the same process to gain decision-making authority for him — it felt like a really appropriate way to start my legal career.

At the time, there was a high school student, Asha, interning with the firm for a few weeks. I invited her to join me in court that day, figuring it might be a good learning experience. 

I addressed the judge, my client answered every question with calm confidence, and the judge granted the conservatorship without hesitation. 

On the drive back to the office, I swung by McDonald’s and treated us both to Egg McMuffins — my go-to celebratory breakfast, then and now.

(01:45) All individuals are presumed to have the capacity to make their own decisions. A diagnosis, like, for example, Down Syndrome, doesn’t change that. 

Parents have to go to court and show that their adult child’s specific limitations creates a need to remove certain decision-making authority and vest it in the parent or other responsible individual. 

And even then, the law says you should only take away as much authority as is truly necessary, using the least restrictive means to protect that person’s best interests.

If you listened to my recent interview with Judge Hedrick, you might remember her explaining that in Tennessee, this process is called a conservatorship when it involves an adult, and a guardianship when it involves financial decision-making authority for a minor. 

In some other states, you’ll hear both types of proceedings called guardianships. 

(02:43) For today’s conversation, I’ll be using the term guardianship throughout.

Since Jazmine’s question arose from my interview with Judge Hedrick, I want to share a short clip from that interview.

In this clip, Judge Hedrick talks about the difficulty of these proceedings. As a reminder, Judge Hedrick is in Tennessee so she’s using the term “conservatorship,” not “guardianship:” 

Judge Andra Hedrick:

(03:14) It's tragic really because if a person has diminished capacity, where they are vulnerable and where they are in need of a conservator, they also have a limited ability to understand the process and what's going on and why someone is seeking conservatorship. I cannot tell you how many times I've had folks come in here that believe wholeheartedly that they don't need a conservator and they'll say, judge, why is my daughter suing me? And it's heartbreaking because that's their perception is, you know, they've been served with papers and a judge might take away their right to make their own decisions and access their own money and, you know, be fully independent humans. And there are times when

They're not happy about it. It's always terrifying to them.

Jillian Mastroianni:

(04:08) Because if they can't understand what's happening and it's happening directly to them, that's a scary situation for the person who's at the center of the conservatorship.

Judge Andra Hedrick:

It is and realize that person might be the center of a dispute among their children. You know, let's say, mom is in here and child one is seeking to be the conservator, child two and three are on her side, but children four and five don't think mom needs a conservator. So poor mom is caught in the middle of this mix.

Jillian Mastroianni

I will link to Judge Hedrick’s full episode in the show notes for anyone who missed it.

(04:48) If, like Jazmine, Judge Hedrick has you questioning whether your own parents’ plan is really in order, that’s exactly why I created the Parent Prep Plan. 

In the Parent Prep Plan, I help find a state-specific attorney who’s the right fit, and then I walk with your parents through the process—organizing assets, prepping for and even attending attorney meetings, and following up afterward to explain things in plain English. 

I also keep the plan moving forward when life gets busy, so you don’t have to be the one chasing documents or trying to translate legal jargon at the dinner table. 

You’ll find the link in the show notes and at deathreadiness.com/parentprepplan.

(05:31) Now, let’s focus on Jazmine’s question.

In a guardianship proceeding, the court removes decision-making authority from someone who can no longer make informed choices and grants that authority to someone who can act in their best interests.

Here’s the important part for Jazmine --sometimes you can accomplish the same protection without going to court—by having the right power of attorney in place.

If you’ve been listening to Tuesday Triage, you know I talk a lot about powers of attorney. I’ll link to those earlier episodes in today’s show notes so you can catch up if you need a refresher, or, if you’re new here, get some additional context.

(06:12) When I talk about a “power of attorney” in this episode, I’m referring to a general durable power of attorney. This is a legal document where one person—the “principal”—gives another person—the “agent”—broad authority to handle financial and other non-medical matters on their behalf. 

This authority continues even if the principal becomes incapacitated or is unable to make decisions.

The “general” part means that the powers are wide-ranging, not limited to a single transaction or timeframe. A limited power of attorney, by contrast, covers just one situation. 

For example, when my husband and I sold our home in Nashville, I couldn’t attend the closing. 

So, I signed a limited power of attorney giving my husband the authority to sign the deed transferring my share of the house to the new owners.

The “durable” part means the document stays valid even if you lose the ability to make decisions yourself—which is exactly when you need it most.

(07:16) One critical point is that a power of attorney can only be signed by someone who currently has mental capacity. They need to understand what they’re signing and make an informed decision to sign it. That’s why timing matters.

If Jazmine’s dad still has mental capacity, the best thing she can do is encourage him to sign two documents: a general durable power of attorney for finances, and a healthcare power of attorney for medical decisions.

That said, it’s just as important not to pressure anyone into signing a document they don’t fully understand or aren’t comfortable with.

And here’s something that is really important to keep in mind: even if Jazmine’s dad agrees that signing powers of attorney is a good idea, he might not want Jazmine to be the one holding that authority. 

That’s his decision—and the fact that our parent might choose someone other than us to make decisions for them is something we need to be open to.

(08:18) If Jazmine’s dad does sign a power of attorney but names someone other than Jazmine, he should share that information with her if he’s comfortable doing so. Transparency is key. The more everyone understands the plan, the less room there is for confusion or conflict later on.

While powers of attorney are the best way to avoid probate court, they don’t eliminate the risk entirely.Here’s an example: imagine Jazmine’s dad tells her he doesn’t want to sign a power of attorney. 

Then, as his memory starts declining, she finds out that he actually signed one years ago naming her sister as his agent. If the sisters don’t have the best relationship, that lack of communication could lead to suspicion—or even a court battle. 

Jazmine might think her sister coerced their dad to sign a power of attorney and file a petition to become his guardian, even though there’s already a valid power of attorney in place.

Also, remember — once someone has lost mental capacity, it’s too late to sign a power of attorney.

(09:27) So, how do you know if someone still has capacity?

From my years practicing law, one of the biggest red flags was when an adult child — not the parent — called my office to set up an appointment for a power of attorney. 

If the parent wasn’t the one initiating the call, and the only thing they wanted was a power of attorney, that signaled to me that there was already a problem with capacity, and I would not move forward with that matter.

I wasn’t qualified to perform a medical evaluation to formally determine competency but I always spoke directly with my client. I’d ask questions in conversation to make sure they understood what they were signing, that they knew what authority they were giving, and that the estate planning documents reflected their own wishes. 

(10:14) If your parent has already lost capacity, though, the only path forward is a guardianship proceeding through probate court. In that process, a doctor performs a capacity evaluation — and the court can order that evaluation if needed.

Most people can’t navigate a guardianship case without an attorney. These cases are expensive, even when uncontested. And when they’re contested? They can quickly become emotionally and financially draining.

The reality is that you can’t completely guarantee you’ll avoid probate court. But with proactive planning, you can minimize the risks.

(10:54) Here’s how:

1. Start the conversation early. Talk with your parents about the importance of powers of attorney while they still have mental capacity. And if you don’t already have your own power of attorney, lead by example. Get one in place, and—if you’re comfortable—share whom you chose as your agent and why.

2. Share key information. When it’s possible and safe to do so, let other family members know that these documents are in place. Transparency helps reduce misunderstandings later on.

3. Keep the focus on care, not control. Powers of attorney aren’t about taking over someone’s life. They’re about protecting the people we love when they’re unable to protect themselves.

Thank you to Jazmine for sending in today’s question. It’s such an important reminder that these conversations—though they can be hard—are worth having now, before a crisis hits.

(11:57) If you’re listening and realizing you don’t know anything about your parents’ estate plan—or whether they even have a plan—my Parent Prep Plan can help. 

I’ll walk with your parents through the process, work alongside the attorney, and keep things moving so you don’t have to. You’ll find the details linked in the show notes and at deathreadiness.com/parentprepplan.

Let me repeat that one more time for you: deathreadiness.com/parentprepplan 

And, if you found this episode helpful, I’d love for you to share it with someone you think could benefit from it.

(12:37) This is Death Readiness, real, messy and yours to own. I’m Jill Mastroianni and I’m here to help you sort through it, especially when you don’t know where to start.

Hi, I'm April, Jill's daughter. Thanks for listening to The Death Readiness Podcast.  While my mom is an attorney, she’s not your attorney.  The Death Readiness Podcast is for educational and entertainment purposes only.   It does not provide legal advice.  For legal guidance tailored to your unique situation, consult with a licensed attorney in your state.  To learn more about the services my mom offers, visit DeathReadiness.com.