Elder Care

Protecting Your Estate

Disadvantages of Guardianships or Conservatorships

High on the list of disadvantages is the whole legal process of conservatorships or guardianships. There is a loss of control over the court-appointed guardian or conservator, and there is the requirement that the process be in a public court of law and be supervised by a judge. There is a requirement that legal representation be provided in most instances, and of course, paid for in thousands of dollars of legal fees. The court process naturally takes many months if not years to complete. Interestingly, there is no requirement that your court-appointed conservator or guardian must act according to your wishes or to a determination of what your wishes are. Rather, the conservator or guardian must simply take actions which are in the best interests of you, the conservatee.

A great illustration of how this legal process works is home ownership. Assume that you are 45 years old. For the past 10 years, you worked on weekends to repair and maintain your father's house, knowing that someday it would be yours. Also assume the location was overlooking the waterway where you grew up. Then assume that, before you could engage in the appropriate amount of planning, your father was struck by a car in a crosswalk and was rendered mentally incompetent, although he still had many daily needs and activities. Because your father had not prepared any legal documents dealing with this contingency, a conservatorship for his estate was opened for him.

When the conservatorship was filed for him, assume that the court declined to appoint you as conservator, and appointed the son of your father's spouse [not your mother.] The conservator decided that a nursing home was the best place for your father and sought court approval to sell all of the assets of the estate for resources by which to pay for this institution. Naturally, you objected to the sale of the house, but your objection, despite your father's willingness to agree, fell on deaf court ears. The judge, caring little about your wishes, your past efforts, or your father's desires, instead seeks to expedite the conservatorship and order what he/she feels might be in your father's best interest, even though it may not.

You may think this is ridiculous, but it happens all the time. This example illustrates the disadvantages of a guardianship or conservatorship. However, since most people do not take preventative measures, such legal procedures cannot be avoided in some instances, and a discussion of the process follows. [It should be noted that there is almost no reason to engage this process, since this entire legal proceeding can be avoided with some preventative planning and legal counsel.]

Protecting Your Estate
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