Better Protection than Guardianship

A Guardianship is controlled by the Chancery Court. The Court determines whether an individual is competent to handle their own affairs, or needs a guardian. The Court determines who will be the guardian to look after the affairs of the ward. Usually, detiled information about how the ward’s money is spent is periodically provided to the Court through a process called the “annual accounting.” The Court determines what is, and is not, an appropriate expense for the ward, and how aggressively the ward’s money can be invested.

However, there is a safe way to avoid the necessity of appointing a guardian, and still address the issue of disability. Execution and fully funding a Revocable Living Trust will eliminate the need to have a person declared incompetent by a court. With all of their assets inside a trust, once a person is declared to be incapable of handling their own affairs, a substitute trustee, chosen in advance by the incompetent person, becomes substitute trustee over all of the beneficiary’s property. The trust document can put whatever restrictions the individual beneficiary, not a court, place upon it. 

A Living Trust avoids the painful ordeal of “living probate.” That’s what happens when a person is no longer competent to manage property, whether because of illness or other causes. Without a Living Trust, a judge must examine whether you are in fact incompetent, and all of the embarrassing details of your incompetence will be dragged out in court. The judge will appoint a guardian – perhaps someone you would not want to manage your affairs. Guardians act under court supervision and often must submit detailed reports, meaning that the process can become quite expensive.

With a Living Trust, your designated trustee takes over management of trust property and must manage it according to your explicit instructions in the trust document. The terms typically set standards for determining whether you are incompetent or not. For example, you may specify that your doctor must declare you can no longer manage your financial and business affairs.