Proper planning can avoid guardianship altogether
October 9, 2016
Over the last several weeks, we've written several articles about the obligations and responsibilities of guardians. We have written these articles to guardians to help give them an overview of the process, some practical tips, and to remind them they are not alone. This time I want to change gears a little and write to the potential ward.
A guardianship should be a last resort. It is court-ordered supervision over your life, your medical care, and your finances. I have great respect for the judges in our community, but no judge can ever know you, your wishes, or your family as well as you do now. You can put a plan into place so that you well cared for, and have the best quality of life, while you are alive but no longer capable of managing your own physical, medical, and financial matters.
In Nevada, a guardianship over you should not be necessary if you have a proper estate plan in place. An estate plan can seamlessly provide for that period of time when you are alive but not well. Your successor trustee and power of attorney can seamlessly step in to manage your assets and property without having to slog through the court system. Additionally, as your successor and agent, that person continues to have the high duties to manage your assets for your care – just like a guardian.
By creating an estate plan, you have the opportunity to pick your own successor – instead of leaving that decision to an unknown judge at some future date. You know who in your life is best with finances, knows your wishes, and will be there for you. You can hand-pick that person to step in to take care of your finances. You can talk to them now about what your wishes are, where you want to live, and how your assets are to be spent.
By creating a trust-centered estate plan, you can impose controls upon your agent that might not otherwise exist. For example, you can direct them to provide accountings to certain people that might not be entitled to them under state law (such as a long-term significant other, friend, or professional advisor). By creating a trust-centered estate plan, you can also give your agent the freedom to do certain things that would otherwise require court-approval, like: making gifts to your children or grand-children for education, medical, or other purposes; selling or renting your home; taking a loan out to cover your expenses; or even continuing the operation of your business.
Additionally, a proper estate plan would include the authority for your loved ones to deal with your health care. In addition to the health care power of attorney, which gives another the ability to make medical decisions if you cannot, a proper plan should address privacy releases. Such releases would allow a broader class of people to talk to the doctor, even if they cannot make medical decisions for you. A proper estate plan can also provide direction on long term care, pain management programs, and physical therapy.
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No estate plan should ever be focused solely on what happens to your stuff after you pass away. Instead, a good estate plan should always provide for your care while you are alive but not well, even if you are getting better. It is key to seamlessly provide for your care, both physical and financial. If those pieces are in place, then you and your family may be able to entirely avoid the cost, delay, and the trauma of a court-ordered guardianship. You can put into place a plan that reflects what you want, and who you want, to care for you.
Cassandra Jones and Michael Millward are the attorneys of Heritage Law Group, P.C. Both are residents of Gardnerville, focusing their law practice on estate planning, business planning, and probate. They can be reached at 782-0040 or http://www.HeritageNevada.com.