It is natural to focus on our families during the holiday season, to think about everything they add to our lives and how lucky we are to have them. As people think about Estate Planning, they often focus on dividing and distributing their belongings and financial assets.
They decide who gets which of their favorite possessions. They decide which family members get money and how much, and perhaps that a certain amount of money will go to a favorite charity. This focus on “things”, however, neglects an important issue. In addition to what will we be giving our loved ones, we need to decide who will be taking care of them—and who will be taking care of us.
This issue is especially crucial if you have minor children. If both parents are deceased, who will serve as Guardian? When a minor child is left without a parent guardian as the result of death, Probate Court can appoint a Guardian to care for the child until adulthood. Who will Probate Court appoint as Guardian? Well, it depends upon who applies to serve. While it would be nice if all extended families had good relationships, unfortunately, that is not the reality for some people. There may be disagreement between relatives about who is best suited to serve as Guardian and there may be competing petitions. Clearly, this is not ideal for a child who is trying to adjust to the loss of their parents.
Conservators are appointed by the Probate Court to handle the financial affairs of those who need Guardians. Just as the Guardian cares for the person, the Conservator is charged with the duty of taking care of the finances in the best interest of the ward. This is often the same person as the Guardian, but it can be another person. Do you know someone who is nurturing but terrible with money? One person may be an ideal Guardian but someone else may be a better choice for Conservator. Who will Probate Court appoint as Conservator? As with Guardianship, the process can be complicated by disagreements within the family that result in objections and even competing petitions.
It may seem obvious that minor children need a Guardian and Conservator appointed to look after them and make decisions on their behalf, but it is also true for those with a mental disability that leaves them unable to care for themselves. One day it may also apply to you. If you are unable to make or communicate significant decisions concerning your health and safety or the management of your property, who will take care of YOU?
There must be a way to avoid some of this uncertainty. There must be a way to ensure that the people you trust to watch over your loved ones are, in fact, appointed by the Court. The good news is that it is possible. You have the power to remove uncertainty from the process by nominating—ahead of time—the people you know are best suited to serve as Guardians and Conservators.
By consulting with loved ones and qualified professionals, you can develop a plan for the future and execute the best documents to make that plan a reality. Your family will be grateful that you did. The time to start is now.
James M. Miskell received his law degree from the University of Georgia in 1993. His Asset Protection, Estate Planning, and Elder Law practice has offices located in Lawrenceville and Johns Creek. He offers educational workshops and free consultations to assist clients as well as fellow professionals in creating individualized solutions. Visit his website: www.LetsTalkEstatePlanning.com. For more information, see his ad in this issue.