The typical moment the average person thinks about guardianship is when it is in the news, such as with Brittany Spears or some other person the media chooses to report. Unfortunately, that can give the impression it isn’t an average person’s issue. Guardianship is a legal proceeding people rarely understand fully and barely think about until it hits home.
The reality is that every one of us is at risk of becoming a ward of the state – under order and control of the court system. Let’s take a look at how that might happen.
What is a Guardianship?
Guardianship results from the court process appointing a person in control over another person’s person and/or property. The person appointed is the Guardian, and the person determined to lack capacity is the Ward.
If that sounds cold, it is. The property guardian controls your finances. The person’s guardian makes decisions about medical treatment, residential placement, socialization, travel, etc. The process is often lifelong since judges can be reticent about lifting guardianship and being held accountable for the decision. It is costly and complicated – and you get the bill.
Any person over 18, not convicted of a serious crime, can be appointed as your guardian simply by petitioning the court. There will be a hearing, a public guardian ad litem is appointed to control you during the process, and you undergo a court-ordered medical assessment.
There are over 2 million open guardianships in the U.S., with more than 200,000 guardianship petitions filed yearly.
Is a Guardianship Necessary?
That is the (insert your life savings amount) question. While certain guardianships are necessary to protect you in the event of your legitimate incapacitation, I can assure you that, in my experience, far too many guardianships over the elderly are about protecting someone’s expected inheritance. And for control over your money.
You read about guardian abuse in the celebrity cases the media chooses to report, and it also frequently happens to ordinary people.
How Do You Avoid an Unnecessary Guardianship?
You avoid being taken advantage of by taking control of your finances now and have the necessary legal documents that appoint the person(s) you trust to take care of you and your finances, only under the circumstances you choose.
The first document is a Power of Attorney (POA.) There are two POAs, one for health care and one for finances. If you are unable to care for yourself, your agent takes over. When that happens is up to you.
The other legal document is a Living Trust. A Trust is not merely an estate plan but is also effective upon your family’s physician-determined disability. And it is private, and you predetermine your future care. You remove assets from your name now, with you as the Trustee in complete control, removing the court from your life and keeping your affairs private.
My advice is never to leave the uncertainties of life to chance. Take control now. That choice can make all the difference in your personal freedom and financial security.
Advantages of a Living Trust
- A Will is Probate. The rule is no one can legally sign your name. Therefore, all assets in your name are subject to the Probate process, which averages 18 months and is costly.
- A Living Trust completely avoids Probate.
- Your financial accounts, life insurance policies, and deferred compensation accounts can name your Living Trust as the beneficiary. This is subject to essential tax considerations.
- A Living Trust estate plan includes both Health Care and Financial Power of Attorney documents. It also consists of a Last Will and Testament. A Will is necessary for guardianship of minor children. It also transfers assets in your name out of Probate.
- A Living Trust contains a No Contest provision and beneficiary Asset Protection clauses.
Tom Tuohy is the founder of Tuohy Law Offices.
This blog entry is for information purposes only. Therefore, it is not legal advice. Please do not use this blog as legal advice, which turns on specific facts, as well as laws in specific jurisdictions. No reader of this blog should act or refrain from acting based on any information included in or accessible through this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the reader’s state, country or other appropriate licensing jurisdiction.