Avoiding Court-Ordered Guardians and Conservators by Using Powers of Attorney and How to Bypass Probate for Everyone

All US states have regulations to protect and provide support for both adults and minors who are unable to care for themselves due to age or mental and/or physical disabilities. Court-ordered care comes in the form of guardianship and conservatorship, with the former focusing on the physical needs of the person and the latter on managing the finances of minors or disabled adults. While these laws are essential for safeguarding vulnerable individuals, they also come with significant implications.

Guardianships and conservatorships offer the perceived advantage of court oversight. They impose strict rules on guardians and conservators, deterring them from making unfavorable expenditures and investments. Courts often restrict fund allocation to specific banks, leading to disagreements over what expenses are considered reasonable. A recent case saw a judge overruling the purchase of a car for a teenager, despite considerable funds being held for her. This highlighted the court’s control over conservatorship, a situation that could have been avoided if the girl’s aunt provided for a trust rather than a conservatorship.

Likewise, conservatorships for incapacitated adults are unnecessary if they have established a durable power of attorney and a trust. However, anyone can petition for a conservatorship, leading to a prolonged legal process that often ends in the subject of the petition having to pay the fees of the court-appointed guardian ad litem (GAL). This reflects the flaws in the existing system, where even a successful defense against a petition results in financial losses.

To counteract this, powers of attorney serve as a powerful tool in defeating probate court conservatorships. They allow designated individuals to act on behalf of the incapacitated person, rendering the need for a court-ordered conservatorship redundant. The language of these documents, especially the durable power of attorney, is pivotal as it outlines the conditions under which the powers are triggered without any court involvement. Notably, a durable power of attorney remains effective even after the individual becomes incapacitated, providing vital protection and support.

When it comes to medical powers of attorney, they are equally important in avoiding adult guardianships, especially for those unable to make medical decisions independently. These powers enable caregivers to make informed decisions regarding hospitalization or surgery without the need for lengthy legal processes.

Overall, understanding and effectively utilizing powers of attorney is crucial in avoiding the limitations and complications associated with court-ordered guardianship and conservatorship. A well-prepared power of attorney, in combination with a trust, provides robust protection for vulnerable individuals, ensuring their needs are met without excessive court oversight. By addressing these issues, individuals and their loved ones can navigate the complexities of adult guardianships and conservatorships, securing their rights and protecting their assets effectively.


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