Planning for incapacity and the money grab.
Mistake: not believing that you will need assistance one day, or that your kids will want to have you declared incompetent, or fight with your spouse over who controls you and your money
It used to be that your family only fought over your money when you died. Often this was in the limo, on the way to bury you. And then they would continue to fight, through direct – and perhaps nasty – letters from lawyers. And, finally – they’d battle it out in trial and appellate courts.
That’s all changed.
Guardianship litigation is a growth field.
Your kids, or others, are no longer waiting until you to die before trying to stake a claim to your money and property. In the process, they’re trying to control you and your money, and may be fighting your spouse over control as well.
It goes something like this…
Your basic estate plan – a will, a revocable trust – has been in place for some time now and you named your latest spouse as your POA and guardian. You have two adult children from a first marriage, which ended years ago. They don’t live near you. They also don’t call often…except to ask for money. And they don’t really remember your birthday or spend holidays with you often, either.
You have a falling out with one of your children. You cut that child out of an inheritance by changing your estate plan. You sign an amendment to the trust, which leaves that child nothing.
Somehow, that child learns of being disinherited. She files a guardianship action and alleges that you aren’t competent – that you don’t know what you’re doing.
Your adult child claims in court papers that the guardianship is an “emergency” and her guardianship lawyer gets a probate judge to sign guardianship papers appointing this adult child as your “emergency temporary guardian” – without even telling you!
A woman you’ve never seen before shows up at your house. She claims to be an attorney, appointed by the court to represent you in this guardianship case. You wonder who’s going to pay this lawyer and she tells you that you’re going to pay her!
Oh – and you’re going to pay the temporary guardian, too!
You’re in dis-belief.
But – it gets worse.
This court-appointed lawyer – who you didn’t ask for and who you’re going to pay for, anyway – tells you that the probate court judge has signed an order. The judge appointed your daughter – the one who you had the falling out with – as your temporary guardian.
But, wait – it gets worse….
Your power of attorney appointing your spouse as your attorney in fact has been suspended.
But, it gets still worse…
All your civil rights, human rights, and personal freedoms (just about) have been taken away from you. The order, signed by the probate judge, took away your rights and gave someone the legal authority to exercise those rights for you…the daughter you had the falling out with!
But – believe it or not – it gets worse still….
The temporary guardian order also gives your daughter the right to manage your property and bank accounts! Your daughter was appointed emergency temporary guardian of your “person” and your “property.”
But – you guessed it – it gets worse….
Your daughter filed a motion which says she has learned you amended your trust recently, but that trust amendment is invalid, because you lacked capacity and are incompetent. Your daughter wants a ruling that your trust amendment, which disinherits her, is invalid!
Sound far-fetched? Not in Florida. When you’re planning your estate, don’t make the mistake of thinking you’ll never need a power of attorney or documents regarding who can make personal and healthcare decisions for you (if you’re unable to)…or who should be your guardian – if you need one. Also, don’t make the mistake of thinking your family won’t fight over your person and property: while you’re alive.
Pankauski’s Bottom Line: don’t be surprised if that knock on the door, one day, isn’t FedEx, but a process server informing you that a guardianship case has been filed against you. Be prepared for the guardianship wars and make sure your estate plan is ready, too. At the least, please don’t make the mistake of being unassuming of guardianships for adults. They are designed to protect those that can’t handle matters for themselves. The process can be abused, and it often is.