Tag Archives: guardianship



If someone believes you are not able to manage your own affairs, they have the right to petition the court and ask the court appoint someone referred to as a conservator to manage your legal and personal affairs.

  • If you have set up a living trust, a co trustee or successor trustee has the inherent right to manage your property on your behalf with no intervention of the court.   If you haven’t set up a living trust, a spouse may learn they do not have the legal authority legal authority to buy or sell property without you designating that he or she is your attorney-in-fact.
  • If your children need to act as a caregiver, your children may not be able to manage your money without you designating them as your attorney-in-fact.
  • If you are not married, your partner will generally not have the legal right to manage your financial affairs unless you have completed a power of attorney naming your partner as your attorney-in-fact.

In the absence of any such advance directive from you giving someone the power to manage your money and property for you, a spouse, child, attorney, other relative or loved one must begin a legal process known as a Conservatorship with the probate court.

Q. What happens when a conservatorship case is filed?

A. Conservatorship is a judicial process whereby the probate court appoints a person, referred to as a conservator, to hold and protect your personal and financial rights.

The purpose of the conservatorship process is to have the probate court appoint someone and give them legal authority to make financial decisions and/or personal care decisions on your behalf.  Some states call this process a Guardianship, as the person appointed to take care of a mentally incompetent adult has duties similar to those of a guardian for a minor or disabled child.

Attorneys often refer to the conservatorship process as living probate, because the probate courts become involved in managing your affairs while you are living.

The conservatorship process is a two-part procedure.

Step 1: Someone, usually a spouse or an adult child, must file documents with the courts requesting you be declared incapable of managing your personal or business affairs.

When a conservatorship action is filed, it must be served on all interested parties.  The court will set a time for an evidentiary hearing.  At the hearing, testimony will be given by friends and medical professionals regarding your physical and mental health.  You may be present at the hearing and the judge may ask you questions to establish your incompetence.

After hearing the evidence, the court may deem you mentally incompetent and/or unable to care for your own basic personal and financial protection.

Step 2: After the court agrees you are incapable of managing your own affairs, your spouse or some other third party will request that they be appointed as conservator.

More than one party may apply to serve as your conservator.  If there is more than one person who seeks to be appointed conservator, state preference laws give higher priority to the appointment based on their relation to you. For example, if you are married, the preference is for your spouse.  If you are not married, the next priority is usually your parents.  Other interested parties, including members of your family, have the right to contest a request to act as your conservator.

The person appointed to act on your behalf, referred to as the conservator, is required by law to provide to the court an accounting of how they manage and spend your money.  The conservator can charge a fee for performing these duties.  All legal, accounting and court fees are paid for from assets owned by you, the conservatee.

A Family Story: Living Probate: Contested Conservatorship.

Matt and Emma, a married couple, owned a restaurant together.  Matt had been married before; he had one daughter from that marriage, Jessica, age 28.

Matt, at the age of 57, suffered a stroke, from which he suffered major brain damage rendering him incapable to walk, talk or think rationally.  Matt’s doctors concluded his condition was permanent. Emma decided to sell his business and take care of Matt.

Matt had not prepared a durable power of attorney.  No one had the legal authority to sign any documents authorizing the sale of the business.

Emma met with her lawyer.  The lawyer explained the need to file for a conservatorship over Matt.

Emma filed documents requesting the court declare Matt incompetent and for her to be appointed as the conservator.  The court scheduled a time to hear testimony from Matt’s doctors. Emma and Jessica attended the hearings.  The judge agreed Matt was incompetent and needed someone to make decisions on his behalf.

Jessica contested the appointment of Emma as the conservator and filed documents alleging such a choice would put Jessica’s inheritance at risk.

After a lengthy, expensive, public legal procedure, the court appointed a financial institution as the conservator of the estate for Matt.  This financial institution will receive a fee for managing Matt’s affairs, money which will come from Matt’s income. The court appointed Emma the conservator of the person for Matt.

All of the documents filed with the courts regarding Matt’s physical condition and his finances are public information.

Just when Matt needs the support of both Emma and Jessica, they are not talking to each other.  Matt could have executed a power of attorney naming Jessica and Emma as co-attorneys-in-fact, requiring both signatures on financial decisions.  This simple document would have likely eliminated costly legal proceedings and the management of Matt’s financial affairs by someone Jessica and Emma have never met.


Q. Can you prevent your financial or health care information filed with the courts from being public?

A. Documents filed with the courts as part of a Conservatorship procedure are generally public records.  Anyone can visit a probate court or go on line and review most of these documents.


Q. Why should you complete a Pre-Need Conservator form?

A. Sometimes, whether you like it or not, someone may file documents with the probate court requesting the courts appoint a conservator to act on your behalf.  Anyone is entitled to seek to have you conserved or to have a guardian appointed for you.

If the court decides that you do, in fact, need to be conserved and if you have previously completed a pre-need guardian form which designated a person who you trust to serve as your conservator or guardian, the court will give first priority to that person in its appointment.  If you have not prepared a pre-need guardian form, the courts may appoint someone you would not want making financial and health care choices for you.

FACT: Pre-Need Guardian for minor children.

If you have minor children, you should also complete a Pre-Need Guardian form designating someone you want to become your children’s guardian, in case you ever become incapacitated.  This document may not deny a natural parent their right to be a custodian, but single parents should definitely complete this form.


How do you have that difficult discussion about what’s in your will?

last-willThe information in this article so important that we’re copying it verbatim from a Yahoo news story.

Remember, if you die without a will, the state will determine who inherits.

People make a lot of excuses to put off planning for the inevitable. You may be fearful about your own mortality, or think you don’t have enough assets to need an estate plan — or perhaps you just think that things will change so much before your death that you and your spouse can delay making a plan.

But dying without a will or more extensive plan only brings further grief to your family. “You leave heirs in a lurch and risk changing the family dynamic” — and not for the better, says Anchorage, Alaska, financial planner Michael Branham.

Do I Need a Will?

If you want to plan out where your things go after you die, a will is probably a good idea.

Without a will, decisions about who will administer your estate, who will be the guardian of your minor children and who will inherit your money fall to a local probate court, which is bound by state laws, says Cincinnati estate planning attorney David Bross. Start now by talking to your spouse about your intentions.


It’s impossible to have a detailed conversation about bequeathing assets before you’ve itemized all the property you possess as a couple. “In many houses, one person takes the reins as the family CFO and the other partner is less informed or engaged with the financial picture,” says Raleigh, N.C., financial planner Mike Palmer. “But both spouses need to have familiarity.” Make a list of each of your investment, retirement and savings accounts, as well as all property and other goods like art or collectibles. (For the latter, you may need to bring in an appraiser to help you understand which pieces have monetary value.)

Next, learn which of those assets fall outside the scope of a will. Typically, this includes anything payable to a named beneficiary — such as a life insurance policy, 401(k) account, or IRA balance — as well as assets held jointly. You need to assign beneficiaries for as many accounts as possible, even before putting together the actual will. It’s worth revisiting beneficiary assignments, too, especially for older accounts — you don’t want your ex-spouse to get your 401(k) just because you forgot to change the designation.

OPENING LINE: “I saw what happened to Jill’s family when she died without a will, and I don’t want our kids to go through the same thing.”

Use a friend’s or even a celebrity’s passing without a will to ease into the conversation while providing some emotional distance. Talking about your own or your spouse’s death is hard, so stay focused on the reason you’re really discussing this: your loved ones.

Decide whom you want to include as an heir. Remember, if you die without a will, the state will determine who inherits — likely your spouse or kids. If you want friends, a pet, more distant relations, or a charity to receive part of your estate, you’ll need to clearly spell that out.

Estate Planning

If you have minor children, your estate planning conversation should also include a discussion of who’ll care for them. Then think about whom you trust to carry out your wishes. A will requires that you name an executor, someone who will be in charge of collecting the estate’s assets, inventorying the property, paying claims against the estate (including taxes), and distributing assets to beneficiaries. The job should go to a financially responsible relative or close friend, or a financial institution.

TALKING POINTS: “Kara is old enough to support herself, but what about Jason? Who would look after him if something happens to us in the next five years?”

For couples with young children, the biggest challenge is often assigning custody of the kids, says Bross. “You have two families coming together and two spouses who may have very different ideas about who would be best,” he says. Factor in not only the personal bond between the child and potential guardian, but this person’s location, other dependents (their own children, or an aging parent), age, and other financial obligations. Even if you disagree, there’s strong incentive to come to a decision: If you don’t make a selection, the court will make its own choice.

One couple took four months to decide between their siblings, Bross recalls, ultimately deciding that the sibling who had no children would be in a better position to care for their kids. Don’t make a choice before talking with any potential guardians about their willingness and any concerns you have.

“I don’t feel comfortable letting the children get their inheritance all at once. They are still so young — if they get a bunch of money at 18, who knows what they’ll spend it on?”

Particularly if your kids are still young, think about how you want them to receive their inheritance. Unless you set up a trust to outline who will receive how much property (and under what circumstances), minor children will get a share of the assets for care through the probate court, even with a will, and at 18 receive the remainder, says Bross. Heirs over the age of 18 simply get their inheritance all at once.

If you want to influence either the timing of the inheritance or the way it gets spent, you’ll need to use a trust. Two common kinds are incentive trusts — which might say, for instance, that an heir must earn a degree or pass a drug test before inheriting — or staggered trusts, which let your estate be paid out over a certain time span. Such arrangements can ease concern about young or reckless heirs.

“I know we always talked about splitting the money evenly between the kids, but what if one of them is earning a lot more than the other?”

Deciding how much money should go to each of your heirs can be one of the biggest issues for families, says Seattle financial planner Stacy Gallagher Ployhar. “You need to consider, if the distribution of assets is not equal among the children, how is that compensated for?” she says.

Among the issues to discuss: Did you make a generous gift to one child — say, for a home purchase or advanced degree — that the others didn’t receive? If you have a blended family with “yours, mine, and ours” kids, will biological and stepchildren get treated differently? Families that have a low-earning child and a high-earning one sometimes want to divide assets differently because they believe one needs the support more than the other. “Everyone’s default when planning is to treat heirs equally — but fair isn’t always equal,” says Palmer.

Ultimately, you don’t want heirs to feel hurt or confused by the size of their inheritance. If you are having difficulty agreeing on a plan for the division, consider speaking with your heirs directly about what fair would look like to them. You don’t have to abide by their wishes, of course, but their input could help you and your spouse find common ground.


Once the two of you have agreed to a plan, hire a lawyer to execute it. A will drafted by an attorney averages about $375, according to LegalZoom. Need help finding an attorney? Many bar associations offer lawyer referral services, in which participating lawyers agree to provide half-hour consultations for less than $50.

This is also a good time to put two other estate planning documents in place: a health care proxy, a living will, and a durable power of attorney for finances.

Call a family meeting and tell your children about your general estate plan. You don’t need to spell out how much they’ll inherit or read them a copy, but you should talk about big decisions you’ve made — for instance, if you’re not splitting assets equally among your children, or giving a large portion to charity. “Having this conversation will give you confidence, says Cincinnati financial planner David Nienaber. “People are afraid to tell heirs for fear they will piss someone off, but people are more upset when you die and they’re left to figure out with their siblings why you did what you did.”


“I had a client tell me once (without his wife present) that he didn’t want “six-pack abs man” spending his money,” says Palmer. The client was worried that if the estate went outright to the wife, then she could leave it all to someone besides their daughter — and that if his wife remarried, her new spouse would get all the money. “Eventually I was able to get him to share that concern openly with his wife and we addressed that in his estate plan by placing the assets in a trust for their daughter,” Palmer continues. “The wife was unhappy at first that her spouse didn’t seem to trust her, but after listening to his concerns and the benefits of a trust, she decided to go along with the plan because ultimately the two wanted the same thing: their daughter to be the heir.”

This story was originally seen on money.com: Half of Americans Don’t Have a Will. Here’s How to Fix That for Your Family

For more information about estate planning and writing a will, go to www.diesmart.com.

Have you thought about an at-home funeral?

Until the end of the 19th century, when someone died, it was the norm to keep the body at home where the family would take care of the deceased loved one until his or her burial.  But as the funeral home industry grew, the number of at-home funerals declined and didn’t regain popularity until about ten years ago.

A story from WBUR, Boston’s NPR station, discusses the recent interest in this type of funeral and cites several examples of families who have chosen to have a more natural, custom ceremony conducted in their own home.

Some people with whom I spoke said they would like this type of treatment when they died but they didn’t think it was legal.  In fact, in all but nine states, it is definitely legal.  Massachusetts even offers clear instructions for home funerals on its website, including what you need for a death certificate, guidance on burials and preparing the body.

If this type of funeral is of interest to you, there are many sources for information.  One is the National Home Funeral Alliance, which has about 300 members around the country.  Another source is our website, www.diesmart.com.


2/3 of all the people who ever lived to 65 are alive today!

Ken Dychtwald, Founder and CEO of AgeWave | JWT IntelligenceThis statistic comes from a presentation given by Ken Dychtwald, PhD, of Age Wave at the American Society on Aging 2013 conference that was held this spring.

This statistic is a part of what has caused the longevity revolution.  What he meant is that because people are living much longer than they used to, the definition of “old age” is changing.  People used to die before retiring so there was no need to worry much about what they would do.  But, now, people must figure out what they should do with their “longevity bonus” and how to spend all of this extra time that they now have on earth.

You might think that people are just tacking their bonus onto the end of their life and spending it in retirement.  However, it seems that they are redistributing it throughout their life.  They are going back to school in their 40’s and then starting a new career, retiring from that new career and then changing fields again.  This is unlike the past when people worked their whole life at one career and often retired after working at just one or two companies.

Retirement used to be considered an ending.  Now many people consider it a new beginning.  It’s a time that’s looked forward to with anticipation by most people.  In fact, 91% of people expect to be happy in retirement.   However, that expectation only lasts about a year.  After that, people begin to think about what they actually want to do with the rest of their life and whether they want a new post retirement career.  They also start to have growing concerns about health problems and insufficient savings.  And in their late 70’s and early 80’s they come to terms with who they are and what will come.

Finally, Dr. Dychtwald said that, unlike in the past, retirement is a time to build relationships, keep learning, re-career, live with purpose and leave a legacy.

The entire presentation can be seen here and is well worth watching.

For more information about retirement and end of life planning, go to www.diesmart.com.

DNR order – should your pet have one?

Half Moon Bay 11-29-10 011

Do you know what a DNR (do not resuscitate) order is?  It is a medical document that alerts doctors and other medical and rescue personnel about whether you want them to do anything they can to revive you if your heart stops.

I have been in the local hospital a few times for various medical procedures and am used to the questions that the staff asks before admitting you.  And I have a DNR (do not resuscitate) document that I  keep on file there.  If my heart stops and reviving me will negatively impact my quality of life, I want my loved ones to let me go.

Information for and against human DNRs is readily available on the web and in books; anyone you ask will have an opinion.

However, for pets it’s a different story.  Last week I had to take my dog, Suzi, to the veterinary hospital for a minor medical procedure and was given several forms to sign.  One of them caught me totally off guard.  I was asked to sign either a DNR or an “administer CPR” form for her.    I had never thought about a DNR in relation to my dog and didn’t know what to do.  I had no idea about how easily a dog’s heart stops beating during surgery and how quickly it’s quality of life will be impacted after that stoppage.

The vet told me that asking for a pet DNR is becoming common practice for many animal hospitals but would give me no recommendation on which form to sign.

When I got home, I got on the web and tried to research a pet DNR to see what the recommended practice is.  I could find very little helpful information.  I called friends with pets and they had no idea what to do either.

Luckily, the procedure went smoothly and Suzi was fine.  But what if there is a next time?  What should I do then?

We at Die Smart would love to hear from you with your opinions on this subject.  To write a comment or to find out more about end of life planning, including human DNRs, go to www.diesmart.com.