When a person is unable to manage financial affairs, you should ask “What is Conservatorship”. This can occur for many different reasons. Although mental challenges don’t happen to everyone, it happens to many.
Sometimes people are born with mental challenges. Sometimes there is a terrible accident and there is a brain injury. Sometimes people get dementia, Alzheimer’s disease, or another serious mental illness.
Why do you need a conservatorship?
A conservatorship is court procedure which is used when someone has a serious mental illness and is unable to manage their financial assets. In a typical family setting, when any family member has a serious illness the family can decide who is the best person to manage the financial affairs for another. That can only happen with court approval.
You don’t need to be rich.
A conservatorship is not about how much or how little you have. A conservatorship is established so the person who is ill can be taken care of. Assets need to be deposited into bank accounts and bills must be paid. The family needs a court order to take away a person’s rights to manage their finances and appoint someone else in their place.
Usually, the conservatorship process starts months or years after it is really needed. Problems arise when bills are not paid. Power or utilities can be turned off. Foreclosures and evictions can throw families out in the street. Medical bills and other bills have to be managed. No one ever thinks it will happen to them until it is too late.
The Problem is with the Living
For some reason, people believe they will die in their sleep and never go through a period of mental or physical disability. But it happens to almost all of us.
Estate planning is not really about planning for your death, it is about planning and protecting yourself while you are alive. Everyone has heard stories about unscrupulous people who steal money and assets from vulnerable individuals. Sadly, many of these stories are true.
The Problem is Avoidable
There are two ways of preventing these problems. The first is with a conservatorship. The second is with a Trust.
A conservatorship takes time and money. The proposed conservator has to hire an attorney and file with the local court to become a conservator. Today, with COVID 19, it is very difficult to get a court hearing, and if you do, it will take place months in the future. Even with an ‘emergency’ filing.
Then, you need to prove to the court that the individual is so mentally ill that the conservatorship is really necessary. Finally, once the conservator is appointed, the conservator needs to get permission from the court to make investments and pay bills.
The conservator has to notify the court at least once a year and get court orders approving their actions. The family is not always able to choose the conservator. The court decides.
Conservatorships happen to young and old. Many celebrities have faced these challenges and have lost their rights due to the court orders. See the problems surrounding Britney Spears.
The reason for the court order is to make certain that no one is taking advantage of the situation. The costs are many thousands of dollars each year.
My Favorite Solution
My favorite solution to this problem is for the individual to have a living trust established before any illness or accident happens. The Trustee of the trust can invest the assets and pay the bills without court involvement or interference.
The individual can establish a revocable living trust. Revocable means changeable. Living means it works while you are alive. A trust is like a box which can own your investments and pay your bills, even if you are seriously ill.
The person who creates the trust manages their assets as Trustee of the Trust. But, if the creator of the Trust becomes seriously ill for any reason, a successor can take over. The successor is chosen ahead of time when the individual is alive and healthy.
The successor takes over without the need for a court process or a court order. The trust spells out the situation when a successor can take over and exactly how the succession works. You can keep control over your future even after you become seriously ill.
Save Thousands of Dollars Each Year!
Once the trust is created and assets are put into the trust, the Trustee manages the assets and pays the bills for the beneficiaries. When the creator of the Trust is still alive, generally the creator, and maybe the creator’s spouse, are the only beneficiaries. That means that the new Trustee will provide financially for the creator and the family.
Annual court approval is not required. This by itself saves thousands of dollars every year. Also, the new Trustee has the power to invest without court approval. The new Trustee has the ability to pay bills, again without court approval. The Trust works independently.
Many people ask what if the Trustee is stealing money? If the creator makes a bad decision and appoints someone who is not honest to be the successor, the family can then go to court to have the successor removed and the assets returned to the Trust. Then the correct person will be appointed to serve as the new successor Trustee.
Are you at risk of paying thousands for a conservatorship?