Guardians and Conservators: The Opportunity to Choose
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If one of the primary goals of estate planning is to have your wishes carried out, even when you are incapacitated or deceased, that requires choosing people to act on your or your children’s behalf as you intend. When you can’t speak for yourself, who can you count on to speak for you? You have a choice: you can either leave it to chance, or you can create certainty.
Guardianships
Parents with custody of unmarried
children under 18 years of age have guardianship rights. These
rights include those vital decisions that parents make for
their children, such as where they live, what schools they
attend, with whom they associate, their medical care, and
their religious training. Because all unmarried children under
the age of 18 are required to have guardians, the courts must
appoint guardians for those children who have no custodial
parents. Just as parents are accountable for their children’s
upbringing, so too are court appointed guardians.
The
Probate Code defines the standards that judges use in deciding
who will be the children’s guardians. While the first
priority is to a surviving parent, the next priority is to
those persons who have been nominated by the parents to act
as guardians. This priority is higher than the claims of anyone
else, regardless of whether they are related to the children.
If parents have not made a written nomination, a judge can
appoint any “interested person” as long as it
is in the best interests of the child.
When
parents have not made a written nomination, the children may
need to be placed into foster care, or have a temporary guardian
appointed, before a permanent guardian is in place. If competing
petitions are filed, as can happen without nominations, there
can be lengthy delays. I have seen many instances where relatives
file conflicting petitions that are resolved only after protracted
and often bitter litigation. Minor children already have a
tough time with the loss of a parent. They don’t need
the added anxiety of wondering where or with whom they will
live.
While judges work very hard to evaluate your children’s best interests, they do not have the insights that you, as a parent, possess. No one knows your children, or your philosophy about child rearing, as well as you. Nominating the caretakers for your children means that you choose the people that will carry on for you and your children. Don’t avoid this opportunity!
Conservatorships
Estate planning includes planning
for both death and incapacity. Incapacity planning includes
nominating those people who will act for us if we are unable
to manage our financial resources or properly provide for
our personal needs. This includes appointing people to act
as our agents under powers of attorney for financial affairs
and health-care decisions, and nominating conservators if
our disabilities become grave enough.
A
conservator is a court appointed individual who manages the
financial affairs and/or the personal care of one who is either
physically or mentally unable to handle either or both. When
a conservatorship is established, it shifts the responsibility
of making decisions about financial and personal care to the
conservator, and it limits the conservatee’s ability
to act on their own finances and personal care. The powers
of a conservator typically include the ability to enter or
void contracts, buy and sell assets, manage your investments,
consent to your medical treatment, and dictate where you live,
such as either at your home or in a managed-care facility.
The conservator steps into the shoes of the conservatee on
the most fundamental decisions.
As
with guardianships, the Probate Code establishes preferences
as to who shall be appointed. The first preference is the
person that you appoint in writing. Next in priorities are
a spouse, a person nominated by a spouse, domestic partner
or relatives. However, it is possible for a petition to be
filed by any “interested person” to be appointed
as your conservator. This includes not only your relatives
and heirs, but also your creditors or any other person claiming
to have a property right in or claim against your estate!
It
is not uncommon for competing petitions to be filed for appointment
of conservator. This leads to extended litigation, delays
in appointing a permanent conservator, and often necessitates
the appointment of the public guardian or a professional conservator
until the petitions are sorted out, which usually leads to
discord in a family. If you are the conservatee, the results
are often not what you intended.
By nominating your potential conservator, you will benefit from peace of mind: knowing that your future financial and personal affairs will be in friendly and competent hands if the need arises. Nominations give you the power to select a person who would not be a likely choice unless nominated, such as a friend rather than a relative. It also minimizes the likelihood of family arguments over who should act. Finally, your nomination expresses your confidence in the judgment of the person chosen. As a result your family should be less concerned about the conservator acting against your wishes. You can also request limits and controls on their powers over your affairs.
Obviously,
your expressing your preference in writing makes all the difference
in who will care for you and your family in the time of your
greatest needs. Who can I count on to carry out my wishes?
You have a choice. Don’t leave it to chance!
