Court interference through a conservatorship proceeding is a total loss of control and a preventable drain on financial, time, and emotional resources.  During conservatorship, the court freezes your assets, holds a public proceeding to determine whether you have capacity (or not), and, if it determines that you don’t have capacity, appoints a guardian to manage your assets and your person.  In the case of the guardian of your assets, this may or may not be a family member; the court often appoints a local attorney.

A conservatorship is only necessary if you don’t have your own incapacity plan in place.  If you have an up-to-date, comprehensive incapacity plan, the court will not be involved and you will stay in control.

The Elements of a Comprehensive Estate Plan

The elements of a comprehensive estate plan are a financial power of attorney, revocable living trust, health care power of attorney, HIPAA release, living will, and organ donation authorization.  You can avoid court interference and conservatorship proceedings by consulting with a qualified estate planning attorney and getting these documents in place.

Be Sure to Name Both Primary and Contingent Trusted Helpers

Be sure to name both primary and contingent trusted helpers in each document in case your primary trusted helper is unable or unwilling to serve, when needed.  Even if you have documents but no one is authorized to act on your behalf, conservatorship proceedings will be necessary.

Your Incapacity Plan Must be Updated Every Three to Five Years

Your incapacity plan must be updated every three to five years; if not, it becomes stale and may not be honored. Financial institutions are particularly sensitive to stale documents because they are concerned that the documents may no longer be valid.

Your Incapacity Plan Checklist

In summary, to avoid court interference, a loss of control, and the conservatorship process:

• Consult with a qualified estate planning attorney and execute the appropriate incapacity planning documents.
• Name back up trusted helpers in your documents in case your primary agent or trustee is unwilling or unable to serve.
• Update your incapacity planning documents at least every three to five years.

If you want to avoid court interference and conservatorship proceedings, consult with a qualified estate planning attorney.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

You must sign!!!  If you go to the effort of consulting with an estate planning attorney, thinking about your goals, making decisions, and designing an estate plan, keep your appointment  to review and sign your documents.  If you don’t sign your estate planning documents, they are not effective and, legally, it’s as if you don’t have an estate plan at all.

Document Review

Your signing meeting is not just a “sign here; sign there.”  It’s an educational meeting.

Your estate planning documents will be reviewed so that you have a basic understanding of how they work.  This is important for your plan to work, your peace of mind, and so you can explain your plan to your trusted helpers (i.e. executor, trustee, guardians of minor children, and power of attorney agents.)

Plus, you get to ask all of the questions you want during your signing meeting, at no additional fee.

Only Executed Documents have Legal Authority

Only those documents that are fully executed under California state law have legal authority.  If your documents are just sitting in your lawyer’s office, unsigned, they have no power; and, you and your family remain unprotected.

Promises to Change or Create Estate Planning Documents Have No Authority

Updating your estate plan is incredibly essential.  When life changes your estate plan must also change.

This means that if you are in a new relationship and you want that individual to be a part of your estate plan either as a beneficiary or as a trusted helper, you absolutely must put it in writing.

In general, it is wise to update your estate plan every three to five years to catch changes in the law, your life, and your estate planning attorney’s experience; but, if you have major life changes, update immediately.  Examples of life changes that mandate an update are:  new relationship, dissolution of relationship, divorce, marriage, new child, new business, and move to a new state.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

The process of estate planning has traditionally been about gaining personal control over your affairs to make sure that your wishes are carried out after your death. This endeavor is of course still central to estate planning, but there is an added dimension that is sometimes overlooked. One of the most amazing demographic trends of our time involves senior citizens. They are in fact the fastest growing portion of the population, and the group of seniors who are 85 years of age and older is growing fastest of all. This increasing longevity is making incapacity planning a must if you want to make sure that you are prepared for any eventuality.

Decision making power is at the core of incapacity planning. If you were to become unable to make your own decisions due to either physical or mental incapacitation, and you hadn’t planned for it, the court could be petitioned to protect you. If the petition is granted they will name a guardian who will make your personal decisions for you, and this includes medical decisions along with where you will reside. A conservator will also be appointed to handle your financial affairs, and this individual or entity will have the power to invest the assets in your estate.

You can, however, maintain personal control of the matter and take that decision out of the hands of the court with the proper estate planning. You simply execute a health care proxy naming the medical decision maker of your choice. You then add a durable financial power of attorney and with this document you select the individual that you would like to empower to handle your financial affairs in the event of your incapacity. As simply as that you have a solid incapacity plan in place, and if you ever decide to change the attorneys-in-fact you are free to do so as long as your capacity is intact.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

Having children brings a whole new urgency to estate planning because in the event of the death of both parents, a guardian will be needed to care for children under the age of 18. There are two types of guardianships for children:

• Guardians of the estate: Also referred to as a conservator, this person manages assets or money held by a child, normally inherited from the parents estate; and
• Guardians of the person: Also known as a personal guardian, they care for the child and become a substitute parent.

One person may be designated to act as both the personal guardian as well as the conservator, or different people may be designated for each role.

Backup Plans

As any parent knows, having a backup plan is important. Not only should you name a guardian for your children, but choose at least one or more guardians as ‘alternates’. Should your primary guardian be unable to care for the children, or perhaps preceded you in death and the will was not updated, you certainly do not want this important decision left up to the courts or to others.

Informing the Guardian

It is best to discuss your decision with your appointed guardian prior to naming them in the will. Raising children is a huge responsibility, as well as expensive, and you should be assured that the person is ready, willing and able to take on this challenge.

Is Two Better than One?

Many parents name a married couple as guardians for their children. But remember, this couple may not always be together due to death or divorce. For example, if you name your brother and sister-in-law as guardians, and your brother passes away, your sister-in-law will be raising the children. Ask yourself, is that really what you wanted?

Choosing a guardian for your children is usually the most difficult task of estate planning for parents, and they often avoid facing it, but it’s a challenge that should be dealt with upon, or even before, the birth of your children.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

It is natural to worry about who will take care of your children if something were to happen to you. And since the law does not allow minors any control over assets or property, you must designate someone to oversee their care in the event you pass away or become incapacitated. If you don’t make this designation, the court will appoint someone for you, and that may or may not be the person you would choose.

This person legally referred to as a guardian and in addition to ensuring that your kids have their basic needs attending to, there are a number of other responsibilities that a guardian would be expected to do.

Common Duties and Responsibilities of a Guardian/Conservator

A guardian nominated by you or appointed by the Court would mainly be responsible for:

• overseeing investments
• paying bills, taxes, mortgages, insurances, etc of the estate
• pay for health and education of the minor
• pay for maintenance including medical bills, summer camps, food, clothes etc for the minor
• pay for vacations

Income Tax Returns

A guardian or conservator would also need to file proper Income Tax returns and pay proper taxes. He would also decide where the minor would live – in the house of parents or with the guardian. The Court would, however, need to approve of this decision. The Court might also direct that certain improvements should be made in the house where the minors have to live.

Any major decisions that affect the assets to be inherited by the children – such as selling the family home for example – would need to be approved by the court.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.