Jeff Fouts: “Jeff Fouts, estate planning attorney, here. Some people are often surprised to find out that they’re going to have to go through a guardianship proceeding. Guardianship is the legal proceeding that your children will have to go through if they don’t have proper documents to handle your affairs during your incapacity.
Something that really shocks people is that the judge in a guardianship proceeding doesn’t have to (and may not) appoint your children to be your guardian. You may think, ‘Well, why wouldn’t he? They’re my children. They’re responsible people.’
Well, there’s two very big reasons the judge may not appoint your children, and instead appoint an attorney who has an office down the street that he’s known for 20 years. There are two reasons.
The first reason is called elder abuse. It is a very rampant problem these days. Sometimes, children take advantage of their parents. Either they abuse them mentally, psychologically, emotionally, or financially. You may say, ‘Well, that would never happen to me.’ Well, it may never happen to you, but I know people that it has happened to. And the judge knows lots and lots of people it has happened to.
Please remember, the judge doesn’t know your children. In today’s world his initial presumption about them may be negative and not positive. The judge does this in order to protect you. He is not concerned about hurting your children’s feelings.
I know of a family. The son may very well live in your neighborhood. The son looks respectable, but he’s greedy. The son wanted to take advantage of his mother and keep her from spending money on herself for legitimate needs so that he could have more in his inheritance when mom died. He was just greedy. These things really, really do happen, and judges know they happen.
The second reason the judge may not appoint your children as your guardian, and instead appoint an attorney that he has trust in, is something called conflict of interest.
Here’s how it goes. Every $1 or every $10,000 that your children spend on your care when you’re incapacitated is that much money that they’re not going to get in their estate. Your children have a built-in reason not to spend money on you, because that’s money that they don’t get in their inheritance. Conflict of interest is a reason a judge may not appoint your children to be your guardians.
The probate judge may pick an attorney down the street. What does this all mean? What it means is basically two things. Number one, you should avoid having to go to Probate Court for a guardianship proceeding like the plague. Avoid it. How do you avoid it?
Well, there are two ways to avoid it. One is to get a quality financial power of attorney drawn up by an estate planning attorney. There is one other way to avoid having to go through a guardianship proceeding, and I’ll talk about in the next segment.
You need to be aware that there are problems even with financial power of attorneys. We’ll talk about that as well. If we can ever help you in any way, let us know and I’d like to, perhaps, review your estate plan. Thank you.”
