Family Attorney
What to Do Legal ways to avoid guardianship
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Guardianship is not inevitable even if you eventually become incapacitated. But to stand a chance of sidestepping court supervision, you must draft a solid estate plan with a lawyer’s help before illness puts you out of commission. One legal device that makes you less vulnerable to becoming the ward of a court is a durable power of attorney. In this document, you name a trusted relative, friend or business associate to serve as your attorney-in-fact and act in your behalf should you become incapacitated. Lawyers charge $35 to $100 to draft the document. Since a durable power of attorney takes effect as soon as you sign it, you must trust your attorney-in-fact not to wield power prematurely. As a safeguard in most states, you can create a springing durable power of attorney, so called because it springs into effect only after someone you specify – for example, your physician – certifies that you are incapacitated. Whether springing or not, a durable power of attorney is generally not filed in court or supervised by a judge, so there is at least a theoretical danger that your attorney-in-fact will abuse his or her powers. If that possibility worries you, consider naming a second attorney-in-fact to act as a check on . the first. Or you might require your attorney-in-fact to provide periodic accountings to your lawyer, who could threaten legal action to correct any abuses. Unfortunately, having a durable power of attorney only lessens the chances that someone might petition a court to impose guardianship on you. Indeed, in some states a durable power of attorney is automatically revoked by the appointment of a guardian. You may therefore want to consider an even more durable precaution – a revocable living trust, which gets its name from the fact that it takes effect while you are alive. Lawyers typically charge $500 to $1,500 to draw up an estate plan that includes a living trust, but you may decide that it is worth the cost because a living trust generally cannot be overriden by guardianship. You can leave your trust empty while you are healthy if you give someone durable power of attorney with instructions to transfer all of your assets to the trust should you become incapacitated. Or you can put your assets in the trust immediately. Whatever the case, you can receive income from the trust for life and change the trust’s provisions or even terminate it. You can specify that after you die, the trust remain intact to benefit your heirs or that the assets be distributed to them without the cost and delay of probate. You can serve as trustee until you are incapacitated, a condition that you define in your trust agreement. For example, you might require two physicians to make that determination. If you do become incapacitated, a successor trustee that you name when you draft the trust document will take over management of your assets. BOX: Help For guidance on legally protecting yourself in old age, you can consult Your Legal Rights in Later Life (AARP/Scott Foresman, $13.95) by Hofstra University law professor John J. Regan. More : money.cnn.com |
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