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A trust can limit control of guardians over assets, preventing financial exploitation

by Legacy Plan
October 5, 2023

The role of professional guardians in controlling assets of individuals under their care is a complex and often controversial issue. While adult guardianship serves a vital purpose in protecting vulnerable individuals who lack capacity to manage their affairs, there have been many instances of abuse where guardians have exploited their power for personal gain.

It is essential to recognize the signs of such abuse and take proactive steps to safeguard assets from potential misuse. One effective strategy to protect assets from a guardian's control is the establishment of a revocable living trust.

By transferring ownership of assets into the trust, individuals can maintain control over their properties while appointing a trusted individual or institution as the trustee. This arrangement provides an added layer of protection by ensuring that someone responsible and accountable manages and safeguards assets on behalf of the person under guardianship, also known as a ward.

Terminating guardianship can be a challenging process and typically requires proving capacity or demonstrating significant changes in circumstances. However, it is not impossible, especially when there are valid reasons for termination, such as improvement in the ward's condition or evidence of abuse or neglect by the guardian.

Courts strive to act in the best interests of wards and will carefully review any allegations brought forward. In considering these complexities, it is essential to remember that while there have been cases of abuse within the realm of professional guardianship, there are also many dedicated professionals who protect vulnerable individuals and manage their assets with integrity.

What is a professional guardian?

A professional guardian is an individual or organization appointed by the court to make decisions on behalf of individuals who are deemed incapacitated and unable to manage their own affairs. This legal arrangement, known as guardianship, is typically established when someone lacks the mental capacity to make informed decisions or handle their personal and financial matters.

Professional guardians are appointed to ensure that the best interests of the ward are protected. Professional guardians play a crucial role in safeguarding the rights and well-being of those who cannot advocate for themselves due to age, disabilities or other circumstances.

They act as advocates and decision-makers for their wards, overseeing various aspects such as health care choices, housing arrangements, financial management and legal matters. Their responsibilities extend beyond mere supervision; they must carefully assess the needs of their wards and provide them with appropriate care and support.

One important distinction between professional guardians and others involved in guardianship proceedings is that professional guardians carry out these duties as a vocation. They typically possess specialized knowledge in areas such as elder law, disability rights, health care management, financial planning and advocacy.

These professionals often work closely with attorneys specializing in elder law or estate planning to ensure that all aspects of a ward's life are properly addressed within the confines of legal frameworks. Overall, professional guardians act as both caretakers and protectors for vulnerable individuals who have been declared incapacitated by the court.

Their role involves making vital decisions on behalf of their wards while striving to maintain their dignity and quality of life throughout what can be referred to as living probate – a period where individuals lack capacity but remain alive. However significant this responsibility may be, it is important for society at large to remain vigilant against any potential abuse or misuse of power by professional guardians.

What is adult guardianship?

Adult guardianship is a legal framework established to provide protection and assistance for individuals who are deemed incapacitated and unable to make decisions on their own. It is a process typically initiated when an individual experiences physical or mental impairments that compromise their ability to manage personal affairs and financial matters. The purpose of adult guardianship is to ensure that the ward's best interests are safeguarded and that they receive necessary care and support.

Guardianship is often referred to as part of living probate because it allows for ongoing court supervision and intervention in situations where an individual lacks sufficient capacity to independently handle their affairs.

The process of obtaining adult guardianship involves filing a petition with the court detailing the reasons why the individual requires a guardian. Relevant evidence like medical assessments, testimony from health care professionals or family members who can attest to the person's incapacity may be presented.

The court then evaluates whether guardianship is necessary based on established criteria such as impaired decision-making abilities or vulnerability to exploitation. If approved, the court will appoint a guardian who will act in accordance with legal guidelines and exercise control over certain aspects of the ward's life.

How much power does a professional guardian have?

When a person becomes a ward under guardianship, their rights are significantly restricted as the guardian assumes control over various aspects of their life. The extent of power granted to a professional guardian varies based on the specific circumstances and needs of each individual.

Generally, a professional guardian has broad decision-making authority over matters such as health care options, financial management, residential arrangements and legal representation for the ward. In terms of health care decisions, a professional guardian typically has the ability to make medical treatment choices on behalf of the ward.

This includes granting consent for surgeries or medical procedures, selecting health care providers or facilities and determining appropriate treatments or therapies. Furthermore, they may have access to confidential medical records in order to make informed decisions about the ward's health.

Financial management is another area where a professional guardian wields significant power. They may have control over bank accounts, investments, property transactions and payment of bills on behalf of the ward.

This responsibility entails ensuring that financial resources are properly managed and utilized for the benefit of the incapacitated individual. However, it is important to note that while professional guardians have substantial power over these matters; they are also expected to act in accordance with legal requirements and ethical standards.

Any abuse or misuse of this authority constitutes a breach of fiduciary duty with serious consequences. To protect against potential abuse by guardianship professionals or even familial guardians alike it is recommended that individuals establish safeguards such as creating a revocable living trust that can provide guidelines for asset management during periods of incapacity without requiring living probate or court-appointed guardianship.

It is essential for courts and concerned parties to monitor guardianship arrangements closely to prevent any potential abuse and protect the rights and assets of incapacitated individuals.

What are signs of guardianship abuse?

Signs of guardianship abuse can be subtle, yet they often leave a trail of red flags for those who are vigilant. One common sign is when the guardian isolates the ward from family and friends, effectively cutting off their support system. This isolation tactic allows the guardian to exert greater control over the ward's assets without interference or scrutiny.

Additionally, the guardian may limit communication between the ward and their loved ones, making it difficult for concerned parties to detect any potential abuse. Another telltale sign of guardianship abuse is financial exploitation.

This occurs when a guardian misappropriates or diverts funds from the ward's estate for their own personal gain. This could involve unauthorized withdrawals from bank accounts, fraudulent use of credit cards or even transferring ownership of valuable assets into their own name.

Such actions not only deplete the ward's wealth but also erode their sense of dignity and autonomy. Furthermore, signs of guardianship abuse can manifest in physical neglect or emotional mistreatment.

Neglect can be seen in unsanitary living conditions, inadequate health care arrangements or failure to provide basic necessities such as food and clothing. Emotional mistreatment may include verbal abuse, intimidation tactics or even manipulation aimed at coercing the ward into making decisions that benefit the guardian rather than safeguarding their best interests.

It is crucial to remain vigilant and recognize these signs as potential indications of guardianship abuse. By doing so, concerned individuals can take necessary steps to protect vulnerable wards from unjust exploitation and ensure that their assets are used for their intended purposes – providing care and support for those who have been deemed incapacitated by a court of law.

How can a trust protect assets from a guardian?

One of the most effective ways to protect assets from a guardian is through the use of a trust. Specifically, a revocable living trust can provide individuals with greater control over their assets and protect them from potential abuse or mismanagement by a guardian. Unlike a will that only becomes effective upon death, a revocable living trust is established during one's lifetime and allows for ongoing management and protection of assets.

A revocable living trust can be especially beneficial in cases where an individual anticipates the need for guardianship due to incapacity or other circumstances. By establishing a trust, individuals can designate a successor trustee who will step in to manage their assets in the event they become incapacitated and are unable to do so themselves.

This provides an added layer of protection against any potential abuse by a guardian, as the successor trustee is bound by fiduciary duties to act in the best interest of the ward. Furthermore, since trusts are private documents that do not go through probate court proceedings, they can help avoid living probate situations where guardianship may be imposed on an individual's estate.

By avoiding probate, individuals can minimize their exposure to potential abuse by ensuring that their assets remain out of public record and under the direct oversight of trusted individuals. In addition to establishing a revocable living trust, it is also important for individuals to regularly review and update beneficiary designations on their accounts such as retirement plans or life insurance policies.

By ensuring that these designations align with the provisions within their trust document, individuals can further safeguard their assets from potential guardianship abuse. Overall, utilizing a revocable living trust offers significant advantages when it comes to protecting assets from potential abuse by guardians.

How hard is it to terminate guardianship?

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Terminating guardianship is a complex process that involves various legal considerations and can be challenging. While the exact requirements for terminating guardianship may differ depending on the jurisdiction, there are generally several key factors to consider. One of the primary factors is establishing that the ward has regained their capacity and is now capable of managing their own affairs.

In many cases, proving capacity involves obtaining a comprehensive medical assessment from qualified professionals such as doctors or psychiatrists. This assessment should provide clear evidence that the ward is no longer incapacitated and can make decisions independently.

The court will carefully review this documentation to determine whether it satisfies the legal standards required for terminating guardianship. Furthermore, it is crucial to involve all relevant parties in the termination process.

This typically includes notifying both the guardian and any interested parties, such as family members or other individuals who may have an interest in the ward's well-being. All parties must be given an opportunity to present their views and concerns regarding ending the guardianship.

Additionally, it may be necessary to demonstrate that there are appropriate support systems in place for the ward once guardianship is terminated. Another important consideration when seeking to terminate guardianship is addressing any potential opposition from the existing guardian.

In some instances, a guardian may resist efforts to terminate their role due to personal reasons or financial interests tied to their position. Overcoming this resistance often requires strong legal arguments supported by evidence of abuse or misconduct on behalf of the guardian.

When does a guardianship end?

A guardianship typically ends when the ward regains capacity or passes away.

In such cases, it becomes essential for the court to reassess the situation and terminate the guardianship.

The court may appoint an evaluator or medical professional to assess the ward's current condition and determine if they have regained capacity. This assessment involves evaluating various aspects such as cognitive abilities, decision-making skills, comprehension of consequences, and communication skills.

If these evaluations show that the ward has regained capacity, then it becomes grounds for terminating the guardianship.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by 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

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