Developing an estate plan is perhaps one of the noblest actions you will take to ensure the efficient transfer of your assets to future generations in a manner that affirms your values and wishes. In addition to helping your heirs avoid probate and minimize family chaos after your death, a properly drafted estate plan also prevents court control of your assets should you become mentally or physically incapacitated.
But what happens if you become incapacitated, are in need of a family member to manage your affairs, and your thoughtfully-drafted estate plan cannot be found because you failed to tell anyone where it was kept?
The case example below recounts the story of a gentleman whose mother was suffering from dementia, but her estate planning documents, which would have given him the authority he needed to manage her affairs, could not be found.
Due to Misplaced Legal Documents, Guardianship Proceedings Were the Only Option
When Mr. Jones came to see us in 2010, he explained that his elderly mother was showing signs of dementia and unable to safely care for herself in her home. As his mother’s cognition began to deteriorate and decisions needed to be made for her care, Mr. Jones began searching for her legal documents. He knew that she had an estate plan because her bank account was titled in a trust. Due to her state of mind, she was unable to communicate the whereabouts of legal documents that would have allowed him to execute decisions on her behalf and manage her financial affairs.
We advised Mr. Jones that, absent a properly executed durable power of attorney, his only recourse would be to petition the court for guardianship of his mother.
Guardianship is a legal proceeding in which the court determines that someone is incapacitated. On behalf of the incapacitated person, the court appoints someone to be the person’s guardian and their authority is similar to that of a parent over a minor child. With guardianship, families can make sure their mentally incapacitated loved one is living in a safe environment, is free from financial exploitation, and is able to receive the proper medical care.
We assisted Mr. Jones over a period of nearly five years and guided him through his legal responsibilities as guardian for his mother. As Mr. Jones quickly learned, the court stays very involved and must approve every action and expenditure of the guardian. Detailed records must be kept and the guardian must report to the court throughout the process.
Five Years Later, Mom’s Documents Are Discovered
Several weeks ago Mr. Jones informed us that, in going through his mother’s storage unit, he found her estate planning documents. Having been named in the trust as his mother’s successor trustee, Mr. Jones could have stepped in to manage his mother’s affairs and avoided costly guardianship proceedings lasting five years. It is ironic to note that the estate plan his mother had created years ago to facilitate unforeseen events such as this, could not be found when they were needed.
A Teachable Moment for Our Clients
At Your Caring Law Firm, we instruct our clients to have a process in place where at least one other person has access to or knowledge of the location of the estate planning documents. This includes access to any passwords associated with digitally-stored copies of the estate plan. It’s important to be mindful that the purpose of engaging in estate planning is to minimize chaos, avoid expensive court proceedings, and prevent situations similar to what Mr. Jones experienced.