How Caregivers Can Avoid Guardianship, Conservatorship and Probate Court

Guardianship and conservatorship

As you're planning ahead, remember that if you are somehow incapacitated, meaning you can't speak or act on your own behalf, your caregiver needs the legal authority to help you. If you don't have valid and appropriate documents in place, then your caregiver will likely need to petition a court for a guardianship. This could have another name in your state, like conservatorship. Guardians may be subjected to rigid oversight and have to account to the court regularly. Another person (for example, the unpredictable relative who seems to show up in many cases) could try to argue that they should be your guardian.

By creating certain legal documents, you may be able to cover your bases to avoid a guardianship entirely or, at least, have your wishes known by the court that is deciding who gets to be your guardian. These documents can speak to what you want to happen with your “person” (such as your medical care and where you will live) and your “property” (such as your businesses, real estate or money). They may include a health care surrogate or proxy, a living will, a durable power of attorney, a living trust or declarations of a preneed guardian and more. Find out what documents are used in your state of residence and how they work to make your plan.

Will substitutes

You can also take action today that will help your loved ones after you pass away. Creating “will substitutes” is a good first step. A will substitute can transfer property to recipients you've preselected for the time of your death and bypasses the need for probate. This could be through a payable on death (POD) designation, by naming beneficiaries on certain accounts like life insurance and retirement accounts, creating life estates or future interests, making assets joint or community property with rights of survivorship, having a good business succession plan if you own a business or by way of a trust. When you create these will substitutes, there should be no need for probate (and much less opportunity for conflict) on these assets. There are nuances and implications to any of these will substitutes that could affect taxes or your loved ones’ rights, so be sure to thoughtfully create your will substitutes to make sure they meet your intentions.

Last will and testament

Even if you think you don't need one, create a last will and testament. For many people, their will doesn't have to be complicated or expensive to make. But the will does have to comply with your state's laws (both in what it says and in how you prepare and sign it). What is complicated and expensive is when a will doesn't meet those requirements. Court involvement is a near-certainty when that happens.

Remember that your will may not only cover what happens with your stuff. It can and should include your funeral wishes and final wishes for your bodily remains. Families can, and do, fight over a person's body and what to do with it. And while you think it may not happen to you, make sure you account for this in your legal documents.

While we don't have a crystal ball and can't control all the outcomes, a solid plan does help your future caregivers and you to navigate life's predictable and unpredictable events. What you do today can go a long way in reducing future costs and avoiding the need to go to court to resolve conflicts.