Estate Planning can feel like an overwhelming concept to digest. No one wants to think about the end of their life and oftentimes, people assume that setting up an Estate Plan is only necessary for the ultra-wealthy and elderly. That assumption couldn’t be further from the truth.
Almost anyone over the age of 18 should at least consider creating a Will (and anyone who has children, owns a home, or has over $150,000 in assets should potentially consider setting up a Trust)
Here at Trust & Will, we aim to make Estate Planning inclusive, accessible and affordable for all. So we’ve decided to take real-life situations and explain exactly how a proper Estate Plan would serve to solve some of life’s hardest problems. Everyone’s experiences are different, which is why our team of legal advisors have hand-picked scenarios to analyze and use as examples to help people navigate their own life and experiences.
Continue reading for a case study that breaks down how a woman worked to ensure that her loved one was properly cared for. We’ll cover:
The Problem
Linda* was contacted by her uncle John* who informed her that he recently updated his Will — making Linda and her sister heirs to his estate. Upon receiving the news, Linda traveled across the country to take care of him because his health was in poor condition.
When Linda arrived at John’s home, she found that John had allowed a homeless man to live with him. For how long? Linda wasn’t sure. It was clear however, that the homeless man had been manipulating John in an attempt to take his assets and money.
Linda called John’s doctor to get information regarding John’s health and the doctor informed her that John had been experiencing severe cognitive disabilities. This was the first time Linda had been made aware of the extent of her uncle’s mental incapacity. All she knew was that he was unknowingly being taken advantage of and she felt it was her responsibility to put a stop to it.
She decided to seek advice from an attorney to find out whether or not she could better secure John’s estate and protect him from being further manipulated.
*Names have been changed to protect identities
The Solution
No one wants to entertain the idea that a family member or someone they love could be being taken advantage of by a complete stranger. The reality is that cases like this happen more than people imagine.
Unfortunately, as our loved ones age, their mental health can suffer. And if they own property or have other assets that need protection, a comprehensive Estate Plan is a must. Even if a person has a Trust or Will in place, people can try to take advantage of the elderly or mentally ill in an effort to take a portion of their assets. That’s why it’s so important to ensure that your loved ones plans are revisited and updated regularly.
Fortunately, Linda has two different routes she can pursue to protect her uncle:
Have a court appoint a Guardian or Conservator to represent him
Help him prepare a Power of Attorney to name someone as his agent.
*Need additional guidance to help protect a loved one? Read our guide on Writing a Will for Someone Else
Appoint a Guardian
If John’s cognitive disability has escalated to the point where he is unable to care for himself or manage his own affairs, Linda may be able to have a court appoint a Guardian or Conservator to represent him.
This option would likely require John’s doctor to testify that John is in fact unable to care for himself. Judicial action would then take place and a court would then put someone else in charge of handling John’s affairs. Note that this process varies by state, so be sure to check with your state’s court system. Each state should have resources and information available.
If the court decides that John does need a Guardian or Conservator, the court will then have to review and approve a wide range of decisions that can be made on his behalf. For example, a court may need to approve any changes made to John’s Estate Plan in order to remove the homeless occupant
Read our Complete Guide to Guardianship for a better understanding of the role of a guardian.
Prepare a Power of Attorney
Option two is for John to prepare a Power of Attorney to name someone as his agent if he is still in sound mind. This option is similar to a Guardianship or Conservatorship in many ways, but it’s a voluntary act by John — and one he could later revoke or revise. That’s important because it means he can also revoke any Power of Attorney he’s made to benefit the homeless occupant.
If John decides to make Linda his Power of Attorney, Linda should check his email, mail, or any other record and make a list of John’s bank accounts and other financial assets. Linda can then contact those financial institutions to inform them that she is the Agent and that any other Powers of Attorney are revoked. After this, Linda should create a new Estate Plan on John’s behalf to ensure that no hidden documents exist that attempt to name the homeless occupant as beneficiary. Why? Because it’s easier to revoke a plan than it is to contest it after death.
*Other important considerations — many legal actions require a certain level of mental capacity but the minimum level required can vary. For example, the capacity required to create a Will may be lower than that required to create a Trust.
Additionally, it’s possible that John has the mental capacity now but may not have capacity in the future if his medical condition is progressive, which can make time an important consideration. Delaying even a few months might be the difference between John being able to clear the situation up himself vs requiring court involvement for resolution.
Lastly, Elder Abuse and financial abuse can be criminal. Many states have passed laws to punish those who take advantage in situations like this. Linda may also wish to contact her county administration or even her state Attorney General to learn more about what options are available. In many cases, the county or state may open an investigation and use their resources to determine what is happening and if any laws have been violated. This may also reveal any other information that might help clean up Linda and John’s situation.
The thought of a loved one being manipulated in any way shape or form is not something anyone wants to face. That’s why it’s so important to have an Estate Plan in place that’s legally-binding and comprehensive so that you’re prepared for the unexpected.
If you’re ready to start your own Estate Plan, ensure that your family and loved ones are protected or update an existing plan, explore the options at Trust and Will today!
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