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Avoiding Conservatorship

Avoiding Guardianship

It is normal to worry about the future in terms of your loved ones, your own health and mortality, and your finances. One of the major concerns many people have is that if they become mentally incapacitated later in life  -- by no means a rare occurrence -- they will lose all control of the assets they have worked so hard to accumulate under a conservatorship.

As Carey Thompson and Laurie Weir, an estate planning attorneys practicing in the Dallas-Fort Worth region can explain to you, there are various ways to avoid Guardianship. Not all methods work in all situations, but you need not fear that your wishes will be overridden by external governmental forces. Part of working with a competent estate planning attorney is that you will have the reassurance that preplanning  for contingencies brings. The important thing to remember is that in order to avoid guardianship you must take the necessary steps as early as possible -- certainly well before you become mentally disabled.

What is a Guardianship? 

A guardianship put into place by a court when an individual is no longer able to manage his or her affairs. Loss of cognitive powers, and/or psychological stability, typically means that one is no longer capable of making reasonable decisions regarding the management of assets or even of making rational decisions about one’s own health or living conditions. When such an occasion arises, a guardian is appointed by the court to oversee the personal and medical affairs of the incapacitated person.  During such a period, the court can appoint a guardian of the estate, someone who will be responsible for managing the person's financial assets. In many cases, the same guardian will be assigned both roles.

Ways of Avoiding Guardianship

As has already been mentioned, there are several methods of avoiding guardianship; each has its pros and cons. Below are various ways to circumvent general conservatorship.

Title Your Assets Jointly With Someone Else
Joint ownership of property is the simplest way to avoid court-supervised conservatorship. If your property is jointly owned, the co-owner can make decisions without your input. In other words, if someone else has access to your bank account or investment account, that person can take cares of paying your bills or managing your investments if you should become unable to do so.

There are, however, some possible drawbacks to joint ownership, among them that:

  • The joint owner of your home or other real estate will not be able to sell or mortgage the property without your consent

  • Adding other owners to your bank and investment accounts or real estate may be considered a gift for federal and state gift tax purposes

  • If the joint owner is sued and loses the lawsuit, your mutual assets could be seized

Sign Powers of Attorney with All Your Financial Institutions

Another way to avoid conservatorship is to sign over power of attorney to all financial institutions that you have dealings with, including not only banks and credit unions, but investment firms and mutual fund companies. Each of these institutions will have their own form of power of attorney.

The problem with this method is that, depending on how many financial institutions you interact with, the task can become time-consuming and irritating. More importantly, these power of attorney forms will not cover personal assets, such as cars and other vehicles, individual stocks and bonds, real estate, life insurance, and personal effects. Also, it should be remembered that by signing a durable power of attorney you are giving the agent named in the document complete access and authority over your account.

Sign a General Power of Attorney

Signing a general power of attorney will, with a single action, cover most types of assets you own. The catch is that there may be exceptions. Other problems may arise because the institutions with which you have engaged over the years may have to have their legal departments examine the relevant papers. Also, it is possible that the document may have a shelf life and your financial companies may not honor it after a certain number of years. Remember, too, that, a general durable power of attorney will give the person chosen immediate and total access to all of your assets, so you must choose an individual in whom you have complete trust.

Sign an Advance Medical Power of Attorney

Another means of avoiding conservatorship is by signing an advance medical power of attorney. The form your primary care doctor will have for you will be a basic one, following Texas state laws. This document allows you to designate an agent of your choosing to make healthcare decisions on your behalf, assuming that your doctor certifies that you are incompetent to make such decisions. Obviously, you will have made your healthcare and end of life decisions clear to the person you choose to act as your surrogate.

A medical power of attorney gives your representative the power and authority to make all healthcare decisions according to your wishes, including consenting or refusing treatment on your behalf, though the form does not permit the agent you have chosen to decide on a voluntary inpatient mental health services, such as convulsive treatment.

Set Up a Revocable Living Trust

For a great many people, setting up a Revocable Living Trust is the most effective way to plan for disability while avoiding guardianship Once you set up and fund a Revocable Living Trust, your assets can be accessed and managed by the person, or, in some cases, the institution, you have named as your disability trustee. There are several components of a revocable living trust that must be predetermined for it to work to your advantage: [1] provisions to determine your mental incompetence without a court proceeding [2] provisions specifying how trust assets should be managed if you become mentally incompetent [3] provisions to ensure that your trust is adequately funded and [4] that you have a Durable Power of Attorney to ensure coverage of any assets that can’t be owned by your trust (e.g. retirement accounts). If you are interested in creating a revocable living trust, contact the Law Offices of Carey Thompson, PC.


 

 



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