Our last newsletter highlighted a guardianship horror story: https://cramerlawcenter.com/areas-of-practice/estate-planning/more-guardianship-abuses/. So, how do you avoid Kise’s fate?

First, plan. Plan well. Are a Durable Power of Attorney and Designation of Healthcare Surrogate enough? They weren’t enough to keep Kise from becoming a hostage to the system. These documents are easily changed. Anyone can assert influence over someone losing mental capacity to change documents and name the influencer to power. A key document to include in your planning in Florida is the Designation of Preneed Guardian. This document creates a presumption that the persons named should be chosen as guardians if suit is instituted. Bad people usually think to change the power of attorney, but don’t always know about the preneed guardian designation. So, this is one extra level of protection in a thorough estate plan.

Next, think about a Revocable Living Trust. And then properly fund it. Assets owned by the trust are not subject to the guardianship. The person you’ve named as disability trustee will take control of the trust assets if the court declares you legally incapacitated. Not the court appointed guardian.

On a personal level, make sure there is peace in your family. Professional guardians are most often appointed when the family is feuding. If there is family harmony, the family member you’ve named to take over for you more than likely will be permitted to do so. Educate yourself and your successors. Leave ample instructions. Work with a law firm and professional advisors who will carry on a long term relationship with you and your family to help you spot potential problems before they rise to an uncontrollable level. There are many other issues to consider. Vigilance is absolutely necessary if you wish to control your fate—particularly after you no longer have a voice.

 

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