Planning to Avoid Guardianship and Conservatorship | Legacy Assurance Plan

Fifteen years ago this spring, an author named Diane G. Armstrong published her first book, “The Retirement Nightmare.” Armstrong’s book was important in a number of respects, not the least of which was the author’s exposing flaws in the legal processes of guardianship and conservatorship.

Legacy Assurance planning to Avoid Guardianship

While the exact terminology varies from state to state, most jurisdictions have two types protective entities for mentally incapacitated persons: guardians, who make personal decisions regarding the person, such as medical decisions and deciding where the person will live (including whether or not to admit him or her into a nursing home.) Conservators make decisions regarding the incapacitated person’s wealth and assets.

Armstrong’s research discovered that the ability to abuse the court procedures of appointing a guardian or a conservator was stunningly easy. In 94% of the cases where an adult is alleged to be mentally incompetent, the judge eventually decides that the person is, in fact, unable to make decisions for himself/herself.

Legacy Assurance Plan of America For Estate planning

So, why do people abuse this system to get seniors adjudged incompetent? Often it is about money and/or control. In some circumstances, it is simply an easy means to an end of getting their hands on the senior’s money. If a court declares the senior incompetent and appoints a conservator, then the senior cannot assert control over his/her own money and assets; only the court-appointed conservator can. Similarly, if the court appoints a guardian over the senior, then the guardian would have sole say-so regarding whether or not the senior is placed in a nursing home.

Other times, it is about control. Perhaps the senior is spending money (otherwise living his/her life) in a way that other relatives disapprove. A family member may think he/she knows what’s best for their senior relative, and is willing to use the courts to get that control needed to accomplish what he/she believes should be done.

Summary: Legacy Assurance Plan For Estate plans can help offer you a variety of form of protection. One type of protection available through comprehensive estate planning is protection from unnecessary and potentially malicious guardianship or conservatorship court proceedings. A plan with a living trust that you have fully funded may help diminish the motivation to use the guardianship courts to attempt to seize control of your assets and, in the process, provide with that extra degree of peace of mind.

Ultimately, many of these case come down to control of the senior’s wealth. This is where having an estate plan with a living trust may offer a measure of protection. If your plan includes a fully-funded living trust, then a court’s judgment of mental incapacitation would still not allow the relative to take control of your assets. Instead, the management of your wealth would pass from you to whomever you named in your trust as your successor when you created your plan. In this way, you have the peace of mind that the person you trust will be the one handling your affairs. Additionally, a fully-funded living trust may help deflect the motivation for someone who would otherwise pursue a financially motivated guardianship case and, in the process, save you and your family from the pain and expense of an unnecessary court proceeding. For more information about Legacy Assurance Plan of America . see the Legacy Assurance plan Video.

Originally published at legacyassuranceplan.kinja.com.