Summary: Legal reformers are beginning to shine a light on an area of the legal process that has suffered from abuse for years: adult guardianships and conservatorships. While the possible negative impacts of an unwanted guardianship or conservatorship can be severe, there are steps you can take to protect yourself. One of the most vital steps you can take is to take prompt action toward obtaining a complete estate plan. Your estate planning documents, including powers of attorney and living trusts, have the potential ability to give you an important line of defense against an improper use of the guardianship system.
In the adult guardianship system, many
of the people over whom the guardianships or conservatorships are sought are
seniors. These seniors are then thrown into a litigation setting in court that
is often intimidating, stressful and potentially very expensive. At the end of
the process, if a judge finds the adult to be unable to make his/her own
decisions, then it is the judge who will decide who becomes the guardian and
takes over decisionmaking for that person.
The frequency of people abusing this
legal process to grab control over an adult’s financial or personal decisions,
despite the recent spotlight on the issue, remains high. Newspapers from around
the country, including leading papers in Sarasota, Fla., Columbus, Ohio, Los
Angeles, Las Vegas and Seattle have reported on a segment of the justice system
that is often overburdened and understaffed, which has allowed guardianships
and conservatorships to become too easy to get and too hard to overturn.
So, what can you do to protect yourself
from an unwanted and potentially abusive guardianship or conservatorship?
Fortunately, there are many steps you take. They all start with talking to an
experienced estate planning attorney and getting an estate plan in place or, if
you already have a plan, making sure it is up-to-date and equipped to protect
you.
How exactly can your estate plan help
you? There are various possible ways. Generally, most any complete estate plan
will include a power of attorney for financial decisions and a power of
attorney for healthcare decisions. These powers can potentially help by
allowing the person you name as your “agent” (also known as an “attorney in
fact”) to manage your decisions. Your powers of attorney likely contain
language that gave your agent decisionmaking authority from the time your signed
the document or else starting the moment you become (or are declared) to be
incompetent.
There is also an extra step you can
take. A revocable living trust has the potential to provide even more
protection against the financial impact of an unwanted guardianship. Your
living trust’s ability to protect you lies in the way that the law views
trusts. Even though, during the time that you are alive and mentally competent,
you are in full control of the assets you have funded into your trust, the law
technically views your trust as a separate entity. Generally, most trusts state
that, if the grantor becomes mentally incapacitated, then the successor trustee
(whom you chose when you created the trust) takes over as trustee, meaning that
he/she takes over managing all of the trust’s assets.
So, in other words, if you have a living
trust and it is properly funded, then, even if someone goes to court seeking to
get a conservator appointed over you and wins, then the successor trustee you
named in your trust automatically takes over managing your trust assets, while
the conservator only has access to assets you own in your own name. If your
trust is fully funded, then it will be your trusted successor trustee who has
the authority to manage all of that wealth.
This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.
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