Part 2: Use Estate Planning to Avoid Adult Guardianship and Elder Abuse

Part 2: Use Estate Planning to Avoid Adult Guardianship and Elder Abuse

In  Part 1 of this series, we discussed how some professional adult guardians have used their powers to abuse the seniors placed under their care. Here, we’ll discuss how seniors can use estate planning to avoid the potential abuse and other negative consequences of court-ordered guardianship.

As our senior population continues to expand, an increasing number of elder abuse cases involving professional guardians have made headlines. The New Yorker exposed one of the most shocking accounts of elder abuse by professional guardians, which took place in Nevada and saw more than 150 seniors swindled out of their life savings by a corrupt Las Vegas guardianship agency.

The Las Vegas case and others like it have shed light on a disturbing new phenomenon—individuals who seek guardianship to take control of the lives of vulnerable seniors and use their money and other assets for personal gain. Perhaps the scariest aspect of such abuse is that many seniors who fall prey to these unscrupulous guardians have loving and caring family members who are unable to protect them.

Keep your family out of court and out of conflict

Outside of the potential for abuse by professional guardians, if you become incapacitated and your family is forced into court seeking guardianship, your family is likely to endure a costly, drawn out, and emotionally taxing ordeal. Not only will the legal fees and court costs drain your estate and possibly delay your medical treatment, but if your loved ones disagree over who’s best suited to serve as your guardian, it could cause bitter conflict that could unnecessarily tear your family apart.

Furthermore, if your loved ones disagree over who should be your guardian, the court could decide that naming one of your relatives would be too disruptive to your family’s relationships and appoint a professional guardian instead—and as we’ve seen, this could open the door to potential abuse.

Planning for incapacity

The potential turmoil and expense, or even risk of abuse, from a court-ordered guardianship can be easily avoided through proactive estate planning. Upon your incapacity, an effective plan would give the individual, or individuals, of your choice immediate authority to make your medical, financial, and legal decisions, without the need for court intervention. What’s more, the plan can provide clear guidance about your wishes, so there’s no mistake about how these crucial decisions should be made during your incapacity.

There are a variety of planning tools available to grant this decision-making authority, but a will is not one of them. A will only goes into effect upon your death, and even then, it simply governs how your assets should be divided. Your incapacity plan should include a variety of planning tools, including some, or all, of the following:

  • Healthcare power of attorney: An advanced directive that grants an individual of your choice the immediate legal authority to make decisions about your medical treatment in the event of your incapacity.
  • Living will: An advanced directive that provides specific guidance about how your medical decisions should be made during your incapacity.
  • Durable financial power of attorney: A planning document that grants an individual of your choice the immediate authority to make decisions related to the management of your financial and legal interests.
  • Revocable living trust: A planning document that immediately transfers control of all assets held by the trust to a person of your choosing to be used for your benefit in the event of your incapacity. The trust can include legally binding instructions for how your care should be managed and even spell out specific conditions that must be met for you to be deemed incapacitated.
  • Family/friends meeting: Even more important than all of the documents we’ve listed here, the very best protection for you and the people you love is to ensure everyone is on the same page. As part of our planning process, we’ll walk the people impacted by your plan through a meeting that explains to them the plans you’ve made, why you’ve made them, and what to do when something happens to you.

It could be a good idea (though it’s not mandatory) to name different people for each of the roles in your planning documents. In this way, not only will you spread out the responsibility among multiple individuals, but you’ll ensure you have more than just one person invested in your care and supervision. In that case, it’s even more critical that everyone you’ve named understands the choices you’ve made, and why you have made them.

Don’t wait to put your plan in place

It’s vital to understand that these planning documents must be created well before you become incapacitated. You must be able to clearly express your wishes and consent in order for these planning strategies to be valid, as even slight levels of dementia or confusion could get them thrown out of court. It’s also important that you frequently review and update your estate documents due to changes in assets or relationships.

Retain control even if you lose control

To avoid the total loss of autonomy, family conflict, and potential for abuse that comes with a court-ordered adult guardianship, meet with us. While you can’t prevent your potential incapacity, you can use estate planning to ensure that you at least have some control over your how your life and assets will be managed if it ever does occur.

If you haven’t planned for your incapacity, schedule a Planning Session right away, so we can advise you about the proper planning vehicles to put in place. And if you already have an incapacity plan, we can review it to make sure it’s been properly set up, maintained, and updated.

Call our office today at (813) 902-3189 to schedule a Planning Session. Mention this article and learn how to get this $500 session at no charge. 

How do you name a guardian for your minor children?

The thought of not being around to raise your children feels crushing and too awful to consider. But if you don’t name a guardian for your children and you pass away or become incapacitated while they are minors, a judge who doesn’t know you, your children or your family will decide who raises them. Families tend to fight over children, especially if there’s money involved. And what if you have family that you don’t want raising your children?

How to Choose a Guardian

Consider these factors when choosing candidates for guardians and back up guardians:

● How well the child and potential guardian know and enjoy each other

● Location – if the guardian lives far away, your child would have to move from a familiar school, friends, and neighborhood. If your guardian is not local, do you have someone locally that could serve temporarily?

● Parenting style, moral values, educational level, health practices, religious/spiritual beliefs

● The child’s age and the age and health of the guardian-candidates:

  1. A younger guardian, especially a sibling, may be concentrating on finishing college or starting a career.
  2. An older guardian may become ill and/or even die before the child is grown, so there would be a double loss.
  3. Grandparents may have the time, and they may or may not have the energy to keep up with a toddler or teenager.

● Emotional preparedness:

  1. Someone who is single or who doesn’t want children may resent having to care for your children.
  2. Someone with a house full of their own children may or may not want more around.

WARNING: Don’t spring this job on anyone without talking to them first. Ask your top candidates if they would be willing to serve, and name at least one back up in case the first choice becomes unable to serve.

Who’s in Charge of the Money

Raising your child should not be a financial burden for the guardian, and a candidate’s lack of finances should not be the deciding factor. You will need to provide enough money (from assets and/or life insurance) to provide for your child. Some parents also earmark funds to help the guardian buy a larger car or add onto their existing home, so there’s plenty of room for extra children.

Consider these factors when choosing who will handle the money:

● Naming a separate person to handle the money can be a good idea. This can work like a checks and balances system.

● However, having the same person raise the child and handle the money can make things simpler because the guardian would not have to ask someone else for money.

● But the best person to raise the child may not be the best person to handle the money and it may be tempting for them to use this money for their own purposes.

You Will Probably Have to Compromise

No one will ever be able to replace you perfectly. You may have to make compromises in some areas. Choose the person who you think would do the best job. Know that you can change your mind and select a different guardian anytime you’d like.

Let’s Continue this Conversation. Call us at (813) 902-3189. We are here to guide you through this process and legally document your wishes.