Summary: Courts, legislatures and attorneys general are continuing to come face-to-face with the ongoing scourge that is the misuse of guardianship legal proceedings in order to abuse seniors. While this abuse can often involve the loss of a senior’s personal autonomy, it also often involves financial abuse, as well. There are certain things seniors can do to protect themselves, especially when it comes to estate planning. But taking pro-active steps to to put a complete estate plan into place, you can better protect yourself from the possibility of someone using the legal system against in order to seize control of your wealth.
Another state is taking on the monumental task of trying to reform its system of adult guardianship and conservatorship. In this case, that state, as reported by the Associated Press in October 2016, is Nevada. That pursuit of reform came on the heels of a 15-month study into the system, which revealed far too many stories of “‘abuse, fear and distrust’ in the program.” The state’s Attorney General, who also promised to attack the problem, promised to do what his office could to prevent guardians from swindling the people they were supposed to be protecting.
The “flash point” that helped trigger this action was series of newspaper reports in the Las Vegas Review-Journal, which exposed a considerable amount of this abuse that was going on. “Some of the cases were just horrible to read,” Barbara Buckley, the executive director of the Legal Aid Center of Southern Nevada, told the newspaper. “Individuals in this situation are being stripped of their civil liberties, the right to run their life as they see fit, without anyone speaking to them or advocating on their behalf.”
Other states have discovered similar problems and have sought to put reforms into place to stop this abuse. One of the earliest sources splotlighting this problem of guardianship abuse was a book entitled, “The Retirement Nightmare,” by Diane G. Armstrong. Originally published, in 2000, Armstrong’s book sounded the alarm regarding how this previously relatively little-known part of the legal system was being abused to strip away seniors’ rights and wealth.
In her book, Armstrong outlined several vital, and easy, steps people can take to reduce or eliminate their risk of being the subject of an unwanted and unneeded guardianship proceeding. Although the author published her book 16 years ago, her advice when it comes to estate planning is just as useful today as it was in 2000. First, Armstrong recommends “working with the right attorney.” This of course, is key. An attorney experienced in the law of estate planning can give a full picture of the legal options available to you for your estate and make helpful recommendations regarding what estate planning tools will (or won’t) help you achieve your planning objectives.
In her second and third points, Armstrong highlights executing the proper legal documents to carry out your planning goals. These documents, which make up a complete estate plan, include a will, a power of attorney for financial decisions, a power of attorney for healthcare decisions, a living will. Depending on your situation, you plan may also include a revocable living trust.
A living trust is often best-known for its potential benefits when it comes to avoiding probate. But a living trust may also offer a degree of protection when it comes to an involuntary guardianship, as well. Sometimes, people go to court asking a judge to declare your mentally incompetent and appoint someone to manage your assets (often known as a conservator or guardian of the estate,) in order to take the control of your assets away from you and put it in their hands. A living trust may help you avoid this potential pitfall. Your properly funded living trust may be able to help even if this were to happen. That’s because, in your revocable living trust, you likely named yourself as the initial trustee and named one (or hopefully multiple) successor trustee(s,) whom the trust stated would take over managing the trust if you died or were declared incompetent. Therefore, even if a judge did make such a declaration, all that would happen in your case is that the management of your assets would pass from you to the person you named as your successor trustee when you signed your trust document.
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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