Guardianship proceedings can be time-consuming, financially draining and emotionally exhausting. But should they always be avoided at all costs? Not necessarily. In many cases, a well-drafted estate plan, with detailed powers of attorney governing your financial and health-care matters, is entirely sufficient to meet your needs, leaving a court procedure unnecessary after your passing. In some cases, though, a guardianship or conservatorship can offer unique and essential benefits, especially when the subject is potentially under the undue influence of another.
Take the case of elderly Milwaukee County farmer Gerald Mahr, as reported by the Milwaukee Journal Sentinel. Mahr passed away in 2011, but several relatives and other loved ones headed to court this summer to contest the man’s will, which left nearly all of his estate to a carpenter who had befriended the man several years ago. The would-be heirs claimed that the carpenter exerted undue influence over the farmer and fleeced him into changing his estate plan.
Powers of attorney have many advantages. One potential advantage for many people is that they are usually easy to change or replace. This may serve as a disadvantage if a person falls under the sway of someone exerting undue influence over them. That person may take over as agent under a financial power of attorney, and potentially assume broad control over the person’s entire wealth. Mahr had powers of attorney but changed them, along with the terms of his will, five times between 1999 and 2009, with each new will allegedly offering a larger distribution to the carpenter.
One of Mahr’s relatives worked with the farmer to create a conservatorship for him. In Wisconsin, conservatorships are court proceedings where the would-be ward requests the court to appoint another to manage their financial matters. Conservatorships require no finding of mental incapacity by the court, but do require the ward to agree voluntarily. In Mahr’s case, the farmer eventually backed out of the conservatorship idea. Relatives believed this was also due to the carpenter’s excessive influence.
A guardianship of Mahr’s estate would not have required his approval, but it is more complex, involving examinations by physicians and/or psychologists, and a court’s determination regarding the farmer’s mental capacity. The level of investigation required to make this capacity determination can be extensive, which is why many people seek to create estate plans that avoid the need for guardianships. However, in cases where a loved one is truly under the improper influence of another person bent upon exhausting (or taking) that person’s assets for their own benefits, an involuntary proceeding may be the only way to save the wealth your loved one has worked to accumulate.
Protecting yourself and your loved ones through estate planning involves weighing the relative advantages and disadvantages of the multiple avenues that exist for accomplishing those goals. To receive the finest in careful and personalized advice about your estate, or that of a loved one, contact estate planning attorney Daniel J. Krause of Krause Law Offices LLC. He can provide you with thoughtful and easy-to-understand options for meeting your family’s needs.
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