Guardianship or The Living Death - Guest Post From Author Richard Woodling

Guardianship or The Living Death

Think of one of the worst scenarios you and your family could face. Losing the ability to make your own decisions. How could that possibly happen? It's quite simple really. A car wreck a stroke a fall that incapcitates is all that is required. It doesn’y take much.  Let me tell you a story. Some years ago, when I was in the financial service industry, I had an appointment with a family in Waco Texas. They wanted me to come down and help them with a problem they were having but it was unclear, in making the appointment, exactly what the nature of their concern was. When I arrived at their home and sat down with the family the wife wheeled her husband into the room with us. He was completely incapacitated. He had had a major stroke six months earlier. The problem she explained was that her husband had real property in his name alone, along with several bank accounts. After he had a stroke she found that she was unable to access the accounts or sell the property to raise money to care for her husband. She was forced to hire a lawyer and go to court to sue for guardianship. And now, the court was going to require an annual court date for accounting of money spent on her husbands care. In addition, she was under constant court supervision and could not act independently. She had lost control of her life and I was there because she wanted to see if there was a way out. Unfortunately, I told her it was too late to do anything.

How does this happen. Technically any one who becomes incompetent because of an injury or an illness and who owns titled assets (i.e. money and or property) in their name loses the ability to manage those assets. Many spouses and children mistakenly believe that this management authority is automatically transferred to them after an incapacity of a loved one. Not so! Only a court can transfer that authority. What occurs to a  family after an incapacity of a loved  one is what we call the "Living Death". The family discovers that they have to sue their mother, father, wife or adult child in court to gain control of their assets through a supervised "Guardianship" . The suit occurs in probate court. This, of course, requires the services of an attorney. Attorneys cost money. Even if you are granted guardianship in the suit the family is from then on under constant court supervision.  And yes in many instances people other than family members are granted guardianship. Not very pretty is it. But that's the way it is.

One question asked about this scenario is "Doesn't a power of attorney do the same thing?" The answer is "No!" The difference is a power of attorney gives the named person the ability to conduct transactions as outlined in the power of attorney period. This power is generally limited. Guardianship, on the other hand, gives the person or institution named supervised control of the assets. That's control, not limited authority. Powers of attorney can and often are challenged and are not always recognized by institutions like bankes or title companies. This can and has caused major heartache to people who have assumed that a power of attorney gives carte blache authority.

Let me tell you another story that illustrates what I'm talking about. At the time of this story I was living in Texas. In Grandview Texas there was a couple that got divorced. They had two children and a fairly large estate that was split between the parties. The family was also split over the divorce. One child stayed in Cleburne with dad. Moms son moved to Corpus Christi. The son living with dad did not like mom at all. Mom was concerned that at some point she might become unable to manage her affairs so she executed a power of attorney naming her son in Corpus as the authority. She did this thinking there would be no way the son she didn't trust, who lived in Cleburne Texas,  would be able to get control of her assets should she fall ill or become disabled. What eventually happened was quite the opposite of all her assumptions. She did indeed become incapacitated. The next thing that occurred was the son in Cleburne marched down to the Johnson County Probate Court, applied for guardianship of his mothers assets and was granted that guardianship; completely negating his brothers Power of Attorney and his mothers plan! Powers of attorney are always usurped by court appointed guardianship.

Is there a better way to plan for this. Absolutely. A properly written, and funded living  trust will avoid all these pitfalls. Why? Simply put, if an individual or a couple have a living trust and they become incapacitated there are no guardianship issues to deal with; no court action is required and no one can break the trust. This is because all the assets are in the name of the trust not in the name of an individual. In the even of an incapacity the co-trustee or successor can immediately step forward and manage the assets without court supervision or any loss of control of the assets in the family. With a living trust you have the exact opposite outcome from the two real life examples we explored earlier.

Richard Woodling is the author of God, The Universe And Darwin, Make sure you pick up your copy!

Hi, I'm Richard Woodling. I was born in 1951 in Nagoya, Japan. That happened because my dad was in the Army Air Corps and was part of the occupation forces in Japan after WWII. During the war he flew B-17s in the 8th Air Force out of England.

When my dad finally retired the family ended up moving to Denton Texas a nice little college town north of Dallas. In school I was a very curious and was always interested in finding out the truth about things. I was also drawn towards both the arts and sciences.

My curiosity about the way things really worked is what prompted me to start writing. Over my life I had accumulated some very specific knowledge on a variety of subjects and decided to use it in a creative fashion. "God, The Universe and Darwin" is my latest effort. I have several more books in the works.

My Webpage

www.Richardwoodling.com