Reasons to avoid legal guardianships

Dennis: Question regarding guardianship, there's a lot of controversy on this because even though you do everything you think you should do, you end up in a situation in front of the probate court where they appoint a guardian to manage and handle your affairs. The estate you thought you had, regardless of how well you have documented everything, crossed your T's dotted your I's, it all goes away. What do you think of that?

Attorney Tom Olsen: Dennis, when we do our workshops, we always tell people you don't want to have to have guardianship for you. It costs about $5,000. It takes about five months to set it up. If we have to create a guardianship for your mom, we don't know who the court's going to appoint as guardian. Maybe it's one of her kids, maybe it's a complete stranger. How do you avoid guardianships?

The key to that is that you have a good, durable power of attorney for financial affairs. If mom's got a good power of attorney for financial affairs and she slips and falls or she's in a car wreck and she's comatose, that power of attorney will allow her kids to manage her financial affairs and pay her bills and all those kinds of things. If mom is in a car wreck and she's comatose and she does not have a financial power of attorney, then we've got to do the guardianship. Five months, $5,000.

Dennis, if you want to talk some more about this, we can do that on the other side of the break if you want to hold on. It's up to you. Dennis, thank you for bringing that to our attention.

Dennis: I have another quick question.

Tom: You hold on, Dennis. We'll be back to you. Go back to Dennis. Before the break, we were talking to Dennis. He brought it up, but we're in agreement that, Dennis, we want to avoid having to create a legal guardianship for somebody. It's expensive and it takes a long time and there's uncertainties there as to who the court will appoint as a legal guardian. It's not necessarily one of the kids. It could be a complete stranger.

Avoiding guardianship can easily be avoided by having a good financial, durable power of attorney in place. Dennis, with that said, did you have an additional question?

Dennis: Yes, sir. I appreciate the opportunity, Tom. My concern is from my own experience in the court system that many times the court will ignore everything that's been prepared for it and has its own agenda to do what it wants to do with whomever it wants to do it with. As a consequence, the estate suffers, and possibly even the folks who created it. Especially in these nursing homes, I've seen that happen, too.

In spite of all of the protections that people have created for their estates and for themselves and their family, it still depends on the judge whether they are on their game or not. Otherwise, it's very possible, especially in Florida, things can go the other way. What say you?

Tom: Dennis, I say your concerns are legitimate. No doubt about it. For a lot of reasons, one being is, I don't care what case you've got. When you're in front of a judge, it is a complete unknown. It depends on what day they're having sometimes or whether they know one of the lawyers and they're going to treat that side better because they happen to be friends with that lawyer.

It's all possibilities and all good reasons to stay out of court in front of a judge when you can. Dennis, I wholeheartedly agree with you and I'm going to say again, as far as avoiding guardianships, a way to avoid a legal guardianship is have a good financial durable power of attorney in place. If you want to take it a step further, Florida has what's called a pre-need designation.

If we had to create a guardianship for somebody, you can ahead of time, you can sign a form saying, okay, if you've got to do a guardianship for me, this is who I want the judge to appoint and that might alleviate some of your concern, Dennis. Thanks for calling, Dennis. We do so much appreciate it.