If you become mentally incapacitated and two doctors declare in writing that you are not able to make intelligent decisions for yourself, your loved ones may be forced to seek a "Conservatorship of the Person". This involves obtaining a judgment from the court and the appointment of a caretaker by the court.Even if the personal relationship between you and your Conservator is as close as a spouse or a child, that Conservator must account for every penny that is spent out of your Estate, and accountings must be made to the court on an annual basis.Your care is under the control of the court!
Family, what it is all about.
Others who feel they should be your Conservator can also present their case to the court, and if the court feels that they would act more responsibly on your behalf, they can be appointed by the court to serve as your Conservator, even if your preference is someone else.
The Conservator has total custody of you and control over your welfare and probably your money.Since you presumably cannot make intelligent decisions for yourself, the Conservator is in total control and may decide for you on any matters pertaining to your day-to-day care, even if you disagree with those decisions. They can have total control over your assets, your physical care, and your comings and goings. They can remove you from your home and institutionalize you, or they can live with you and care for you personally. As long as it can be shown to be in your best interest and they are operating within their responsibilities as your Conservator.
If this prospect frightens you, or perhaps just angers you, it should! We should never be in a position where our life and personal freedoms are totally in the hands of another person.With a Living Trust you can decide in advance and appoint the person you would like to take care of you if you become incapacitated.No doubt you would choose someone you know has compassion for you and loves you, who cares about your well being, will still listen to you even when you are incapacitated, and do their best to fulfill your desires and cater to your comforts.Furthermore, with a Living Trust there are no accountings to the courts, no special reports, and no changing of the arrangements you set up.
Guardianship for Minors
If you have minor children, you will be concerned about properly appointing a caretaker or guardian who will be responsible for them if something should happen to you.If one spouse is still alive there will be no problem, but should both parents die together, a Guardian for your children would become necessary.
Similar to Conservatorship, the courts would decide who should take care of your children unless you have legally appointed a Guardian in advance. The same situation might apply if you have a disabled or mentally handicapped child who needs a lifetime caretaker.
The appointment of a Guardian in a properly crafted Revocable Living Trust allows you to choose a succession of caretakers for your children.You can be assured that the person(s) you want in charge will be the ones assuming that responsibility if you die.The courts have no jurisdiction here unless the quality of care is being challenged, in which case the current caretaker can be removed and the second caretaker you appointed will take over.There is a great deal of peace of mind in settling this issue legally and in advance.
The information contained in this website is not to be construed as legal, investment or tax advice. If this type of information is desired, the services of a competent Attorney, Insurance Agent, Investment Advisor or CPA, licensed in good standing with the State in which you reside, should be consulted.
