Another Added Benefit: Using Your Estate Plan to Protect You From Unwanted Guardianships


In recent years, many studies and reports have discussed the problem of the abuse of the legal procedures of guardianship and conservatorship. In an unfortunately large number of cases, people have used their positions as guardians or conservators as opportunities to grab control of the (often substantial) assets of seniors and other vulnerable adults. While lawmakers in many states have passed legislation to minimize some of the potentials for abuse, the risk remains. One way to protect yourself and your family is through estate planning.

Earlier this year, The AARP Bulletin reported on the efforts of Tonya Schuitmaker, a Michigan lawmaker, to enact a version of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act in that state. Proponents of the act say that it necessary to protect vulnerable adults from the risk of being ferried to another state in order to establish a guardianship there, practice is sometimes known as “granny snatching” because the vulnerable adults who are the subject of these proceedings are often seniors who possess significant amounts of cash or other valuable assets.

National Law Journal article about the Uniform Act cited the circumstance of a daughter-in-law who snuck her mother-in-law out of a Texas nursing home literally in the middle of the night, relocating the woman to Madison. The mother-in-law had roughly a half-million dollars in assets at the time.

Wisconsin has not adopted the Uniform Act in any form. But Wisconsinites can take proactive steps to minimize their risk of becoming the subject of an unwanted, involuntary guardianship or conservatorship proceeding by creating an estate plan. An estate plan that includes trust planning can not only help you avoid probate, it can also help you escape an undesired guardianship or conservatorship proceeding. Often times, as may have been the case in the example cited by the National Law Journal article, money serves as the motive for these involuntary proceedings. A trust may help you by removing this motivation. If you have funded your assets into a trust that is managed by an outside trustee, whether that trustee is your lawyer, your financial professional (or bank), a relative, or a friend, then a court declaring you incapacitated has no effect on those assets as they remain under the management of that outside trustee.

If you are the trustee of your own living trust, you are still protected because living trusts typically have language that automatically transfers trusteeship from you to the successor trustee (whom you choose) in the event that a court declares you to be incapacitated. As a result, if you’ve funded all your assets into your living trust, the appointment of a conservator would not change who has control, as the terms of your trust agreement would still govern who manages those assets.

For carefully customized advice and representation relating to your estate planning needs, consult Madison estate planning attorney Daniel J. Krause of Krause Donovan Estate Law Partners, LLC. Estate planning offers many clear benefits related to issues like creating a legacy or avoiding probate. But the benefits of estate planning go far beyond just those advantages. Contact Attorney Daniel J. Krause today to discuss your goals and get started creating your plan.

Reach us through our website or call our office at (608) 344-5491 to schedule your confidential, no-obligation initial consultation.

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