Understanding guardianships is critical to anyone who is planning for the life of their child or dependents after they are gone. And while no one likes to think about what will happen then, planning now can help you to avoid any potential risks your loved ones may have to deal with later on.

Understanding Guardianships

A guardianship is a court supervised proceeding in which those who are minors or those who are adults unable to make their own decisions are considered for placement with friends or family if their current guardian or parent dies. The guardian is court appointed, which means that the guardian is appointed without any input from parents, usually because the parents left behind no specific instructions for what should happen in their absence.

In a guardianship, the guardian will manage the assets and well-being of the minor or dependent children. This process is far more complex than other methods available, though. For example:

• A guardianship requires annual accountings of the assets of the dependents
• Limitations on decision making to some level occur
• Bond requirements are often in place
• Restrictions on how money can be spent or invested for the benefit of the dependent are in place
• More lawyer and court involvement in the lives of the minor or dependents is common.

There are ways to avoid this from occurring though, and that is something many parents are striving to do. If there is no trustworthy person that is available to take care of your children then a guardianship may be the best option for your child, but with activities and assets monitored and under court control, this is not the right option for many.

How Trusts Offer Protection

One of the best ways to avoid the effects of a guardianship is to develop a trust before you die, so that you have the last say in what happens with your children should you be unable to care for them. There are several factors to consider:

• In a typical trust for adult children, it allows for the assets you have to move to your children without any risk of the court limiting access. A living trust, the child manages his or her assets without any guardian control.

• For minors or dependent children, a testamentary trust can be helpful. This allows you to leave assets to a minor child with a trustee to oversee the trust.

For those who wish to control what happens to their children and dependents after their death, using a trust is often the best route to go. You can leave assets and overall guardianship guidelines behind as part of your will and estate plan. These, when created properly, can protect your loved ones and ensure that they are able to benefit from your estate without the risk of the court becoming involved in their lives. For many parents, knowing their child is protected, long term, is the best route to take to avoid problems down the road should something happen.

It’s a common question we get – is elder law the same thing as estate planning?  The simple answer is no.  Elder law tends to deal more with the specific end of life issues faced by the elderly, while estate planning is a bit more holistic in scope.  However, some of the issues addressed in elder law are often addressed with good estate planning so the two may sometimes overlap.

Given these differences, should you hire an elder law attorney or should you hire one that focuses on estate planning? It depends on your circumstances.  Both are good options to consider and are far better choices than choosing to do it on your own. Understanding the differences can help, but one thing to keep in mind is that most of these professionals can help you to construct the type of document you need to accomplish your goals.

A closer look at elder law

Perhaps the most important thing to know is that in elder law planning, the goal is to plan for your life’s needs prior to death. This means providing for your medical needs, your living expenses and even long-term health care. While estate planning does this as well, it also focuses on your estate after your death, giving you more opportunities to achieve what you hope to before and after your death.

Often, elder law focuses primarily on the prior to death laws. This may include providing you with help and guidance for things like:

• Nursing facility care
• Care if you become disabled or incapacitated
• Care including conservatorships and guardianships
• Disability planning resources

In short, with elder law you are planning for those years prior to your death, in case something happens that leaves you unable to make decisions yourself or when you need help to ensure your wishes are carried out when you cannot state what those wishes are.

Differences with estate planning

Estate planning attorneys can help with the creation of plans prior to death as well, especially in terms of planning for the monetary aspects of these needs. When you are working with an estate planning attorney, though, you are often going to focus specifically on your goals for long-term estate planning. Not only will this plan help to provide for your needs up until your death, but also after your death as well. It is often more of a comprehensive plan for all of your needs.   Estate planning may also include things like trusts and guardianships as well as advanced medical directives which help address these other important issues.

Elder law or estate planning, the decision is up to you based on what your goals are. However, most parties can meet all of your goals overall, not just one or the other. Take the time to consider what you need and want from your estate plan. Contact a professional to help you to make it happen and get it in place. It is never too late to make key decisions that will affect your life and your heirs.