- March 23, 2021
- Steve Heisler
- Senior Injuries
Preventing guardianships is very important to our senior and elderly communities. Seniors should avoid the ever-increasing threat of winding up in one of these guardianships during their lifetime. The reason why prevention of guardianship is so vital is related to the reality that getting out of a guardianship or terminating a guardianship is essentially impossible. Once these things start, they really cannot be stopped. The system is designed to make it very easy to fall into a guardianship. Seniors can be caught up in this legal maze that is so opaque and impossible to understand but very hard, if not impossible, to get out.
Guardianship Is A State-Based Issue
The reality is that guardianship in America is a state-based issue. In other words, every state in the union has its own set of rules, regulations, statutes, and customs. This idea of guardianship came from England in the 16th century when they created equity courts to deal with issues that courts of law had trouble with. Each state has its own individual approach to who should be in guardianship and how it should be run. There are tremendous barriers for any aspect of the federal government to become involved in matters of inheritance because of that state’s rights perspective.
Hopefully, there will come a time where aspects of the federal government can be engaged in the process. At this time, it’s unlikely that the federal government, in any meaningful way at least, will play a role in minimizing the abuse that we have documented. We should stay hopeful that the federal government will wake up to the frequent and common abuses from all around the country. It has gotten to the point where this is no longer the secret that it used to be. Sadly, the abuses are coming from the court insiders like judges, lawyers, guardians, and all of their downstream enablers.
Preventing Guardianship By Resolving Family Disputes
Preventing guardianship is very difficult because guardianships typically, especially the abusive kind, usually result from family dysfunction. When there is a dispute within a family about what to do with the mother, father, or whatever relative, these disputes result from good intentions. The first thing you can do to avoid guardianship is to gather family members and resolve any family disputes proactively. That way, the problem will not escalate into a horrible guardianship situation. Whatever it costs, whatever it takes, it’s much better than any possible alternative, including guardianship. If you can get your family on the same page, you will reduce the likelihood of ever winding up in a guardianship.
Make Your Advanced Directives Bulletproof
Lawyers do have an important role to play in preventing guardianships, but that role is not litigation. Instead, that role is estate planning. Most likely, you have spent a significant amount of money to create an estate plan. What will be critical is making your advanced directives bulletproof. Also, make sure to prevent the appointment of a professional guardian over your estate or yourself – it will be a significant move in your advanced directives. The document should read something like this: “I specifically prohibit under any circumstances the appointment of a professional guardian over my person or a state.”
Know Your Banker & Know Your Financial Institutions
Another thing to keep in mind is not letting seniors around banks, credit unions, and other financial institutions. The critical message is not how you want to give money, but to be aware that the very act of giving money can put you at risk of something unpleasant and horrifying. So, as seniors, you need to be aware, and you need to know your banker, and you need to know your financial institutions.
Another piece of advice to avoid guardianship is to put your home in joint tenancy and all of your other assets. Joint tenancy means that either signatory on the account owns the assets. However, it is harder for a court or judge in probate to take over an account that has a joint tenancy. It’s much easier for the court to take control over an account that with only one signatory.
Overall, getting out of a guardianship is almost impossible. One thing that you can do is try your best to avoid it by solving family disputes. In addition, you need to know your banker and your financial institution on a deep level. Lastly, ensure your assets are in joint tenancy. For other tips and resources, follow The National Injured Senior Law Center on Facebook.