Several times per week, I meet with new clients to discuss estate planning. We talk about things like how they wish to leave their property, how to save taxes and who will handle their affairs when they can’t do it any longer. One thing we always cover is the importance of avoiding guardianship.
The administrative hurdles, delays, court supervision, bonds, and general hassles of a guardianship case are bad enough. But in many situations, the respondent’s loss of control, loss of dignity, and hurt feelings are the hardest part.
I have known a lot of people who were alleged to be incompetent. I have been involved in one way or another in more than 200 guardianship proceedings in several different counties. In most of these cases, caring families are working through a difficult and expensive situation that could have been avoided with proper planning.
So when I talk to clients about planning, we spend a lot of time on incapacity. It is hard to think about what happens when you die. It is even harder to contemplate losing your ability to make decisions or care for yourself. In many guardianship cases, the respondent had an estate plan. It just wasn’t the right kind of plan.
I was recently involved in a case involving an 82-year old widower who lived alone. He had been very successful in his prime, owned property and had sufficient income to pay for his daily living. He had a standard estate plan in place, and thought he was prepared for his later years. Unfortunately, his dementia rendered him unable to handle his affairs on his own. His children all live out of state, and he has no family member here to help. Because he and his children could not agree on what steps to take for his protection, one of his children filed a petition to have him declared incompetent and have a guardian appointed. At the hearing, he slowly, but articulately explained to the Court that based on his accomplishments, sacrifice, and a life well-lived, he believed that he had earned the right to make his own decisions. Unfortunately, his safety and well-being demanded that he needed help.
This man clearly met the statutory definition of an incompetent adult. Although guardianship was absolutely warranted in this case, it was not the best solution. Unfortunately, the time to plan for alternatives is not when you are 82 and have significant diminished capacity. After long discussions between the respondent and his children, it was clear that he needed to relinquish some control and that he would not do so. With tears in their eyes, the respondent’s children explained the facts to the Clerk of Court, and they were appointed as guardian.
If everything goes right, one day I will be 82 years old. If my body outlives my mind, I don’t want the Clerk of Court to decide when I lose control. I don’t want to be adverse to my family. I don’t want to feel like everything I worked for my whole life is being taken from me. To prevent this, I have a revocable trust, an enhanced financial power of attorney, and medical directives. I have successor trustees appointed, and specific instructions for when they take over. My financial power of attorney accounts for every situation that I can think of. My medical directives appoint the decision-makers and list my wishes. I have more types of insurance than I thought existed. My family understands my estate plan. And I know that it will need to be reviewed and perhaps modified every few years. I hope that this is all unnecessary. But I will feel a lot better when I’m 82 because I have this in place.