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 decision making 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.