Getting into guardianship and living trust is one of the most difficult decisions any person will face after passing away. Even more difficult is making that decision while keeping loved ones safe. Making sure your wishes are carried out responsibly and legally can be a bit overwhelming. A skilled and knowledgeable probate and estate law attorney should help you navigate the system. Here’s what you need to know:
The purpose of guardianship and living trust is to secure the future of an incapacitated adult. An example of this is when a parent is suffering from a debilitating illness or terminal disease. To protect that parent’s interests, they appoint a guardian, which is someone appointed by a judge. The judge usually appoints one person as the guardian and another to act in the interest of the person with the disability until the disability is lifted. At that point, both caregivers would then assume the role of protector, assuming the duty and responsibilities of an appointed guardian. If the incapacitated adult had been given legal or financial instructions for their last wishes, then those instructions would override the provisions of the living trust and guardianship order.
A good estate planning attorney will guide you through this confusing and potentially painful situation. Your probate lawyer can fill you in on what happens if there is a change of conditions that leave an incapacitated individual alone with their personal property. In California, guardians have to register and meet certain requirements. They also have to file annual reports with the California State Board of Equalization. Unfortunately, even with all of these protections in place, changes of circumstances may occur that render a guardian ineffective. It’s important to speak with a professional who can help guide you through this transition and provide advice about how to transfer assets and how to handle any potential litigation.
As mentioned earlier, even when a person is considered a physical and mental disability, there are a number of options available to make sure your wishes are carried out. Many people choose to designate a legal guardian. A legal guardian can be a family member or a friend, but he or she does not have to be related to the incapacitated person. If a person does not want to designate a guardian, they can name a spouse, adult child, or a trust agent who will act in their best interests whenever any changes occur. Some people also decide to create an estate plan to ensure that their wishes are fulfilled and that any assets owned pass to their children or whomever they choose.
There are several differences between guardianship and estate planning, especially when the incapacitated party is no longer able to make decisions for them. First, when someone has the complete freedom of movement that most adults experience, they do not have to report their condition to anyone. This allows them to engage in most adult pursuits that most people take for granted such as traveling, dating, working, and so forth. Because the incapacitated party is not physically or mentally able to do these activities, however, they are unable to control their environment and they must rely on a reliable representative to provide for their needs.
Estate planning and guardianship require much more detailed planning than just deciding whether to make decisions for the incapacitated individual. Even if someone makes good decisions while living under a guardianship, they may still end up losing most of their assets to the state. This is due to laws regarding how property is transferred during a guardianship and, sometimes, the incapacity test is used to determine whether or not the property is properly protected. Another difference is that most of the time, someone can be declared incapacitated only if they are not able to make decisions for themselves, rather than if they are physically or mentally unable. This is why estate planning often involves both the incapacitated person and their estate planner, making sure everything is protected said a probate and conservatorship lawyer in Georgia.
Often, there are several options available when it comes to guardianship and it depends on each case as to what the best solution is for everyone involved. In some cases, full guardianship is the best choice for the patient and the family, while others prefer to have a legal guardian. If someone has been declared incapacitated, their estate will be managed by a board created by the courts, appointed by the court, which will also make decisions on behalf of the person. There are certain things that are considered when determining whether or not a guardianship is needed, and they include the wishes of the person who is suffering as well as the preferences of other relatives. There are even times when a guardianship is not required and the court simply states that there is not someone available to make decisions for the incapacitated person.