Understanding the Importance and Implications of Guardianships and Conservatorships

Often in estate planning, attorneys present the idea of guardianship and/or conservatorship as a bad thing - something to be avoided. In a perfect world, we could move through our lives from cradle to grave without such things as guardianships and conservatorships. But in order to achieve this perfect world, we have to do advance planning to provide for our own care if we become impaired or incapacitated, and we need trustworthy, responsible and financially astute family members who are willing and able to assist us. For some people, these "perfect world" conditions do exist. However, for many others, they do not.

Increasingly, attorneys run into the following situations:

1. Seniors come to us, often brought by their children or children-in-law, when mental incapacity has set in, and although they appear to have willing and able family members who can take care of them, assist with making personal care and living decisions, or manage their finances, the seniors do not have the necessary delegation documents in place to empower these helpers as their agents.

2. Seniors have documents in place, but the people named are dead or no longer available, willing or appropriate to serve.

3. The people who the senior trusted and anticipated would be appropriate have become exploitive and abusive to them.

4. Seniors have been conned into paying for, or agreeing to pay for, fraudulent products and/or services.

A Vicious Lie: “Multitasking”

Are you good at multitasking?  Are you able to work on multiple things at once and thereby accomplish more than most people?  Personally, I’ve never really considered those questions.  I just assumed that in today’s world, that’s what you have to do to stay on top of things.  How else can you satisfy all the demands placed upon you?


Last week I attended a networking luncheon for the Lehi Area Chamber of Commerce.  The speaker at the meeting was Dave Crenshaw, author of the book “The Myth of Multitasking: How “Doing It All” Gets Nothing Done”.  What he shared in his short presentation was a real eye-opener to me.  I’ve since obtained a copy of his book and have been sharing it with everyone at work.  It has caused me to seriously re-evaluate the way I approach my workday, my personal life, and my relationships in general.


Here are a few pearls of wisdom from Crenshaw’s book that have really helped me, and I hope will do the same for you:

A Mother’s Love

If a theme is to be found from my many interviews with clients over the years, it’s that parents love their children and will do anything for them.  Over and over, when I work through the estate planning process with my clients, I find that the guiding principle motivating parents in their planning is the happiness and well being of their children.  Parents will frequently state to me that they are willing to do anything for the success and happiness of their children. 


This sentiment was proven again in a dramatic fashion recently.  You’ve likely heard by now about the amazing story of the mother in Louisville, KY who protected her children from almost certain death when a tornado with 175 mph winds ripped their brand new brick home to shreds.  If you’ve not seen the inspiring newsreport yet, it’s well worth watching.

How Will You Die?

A few days ago, my wife and I learned that a friend we went to college with is in need of a heart transplant. As any of us would be, this woman is overwhelmed at the thought of facing her own death. Unfortunately, we can be faced with end-of-life health care decisions at any age. This is why every adult should give some thought to planning for those decisions and then take the simple step of executing an advance health care directive.

This week, Governor Herbert will sign SCR2, a concurrent resolution encouraging every adult in Utah, whether they have a known serious medical condition or not, to consider preparing an advance health care directive (AHCD). The Utah AHCD form has two parts: (1) Part I allows you to appoint someone (an agent) to make medical decisions for you when you cannot make or communicate your own medical decisions (also called a Health Care or Medical Power of Attorney). (2) Part II allows you to express your preferences about health care decisions under particular circumstances and helps ensure your health care wishes will be honored (also called a Living Will).

Obama’s War On Faith?

I consider myself a person of faith.  And although I strive to be sensitive to those of other faiths (and to those who eschew faith altogether), I believe strongly that the First Amendment to the U.S. Constitution lies at the foundation of what makes the United States great and strong.

The First Amendment reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”


You have likely noticed by now that the the media is all abuzz about the conflict raging between American religious leaders and the Obama Administration’s proposed policies regarding mandated health care coverage.  If you’re not yet familiar with this subject, here is a short article from Reuters news service on the issue.

Over the River and Through the Woods . . .

It is becoming more common these days for families to own vacation homes. Often, these second homes become the center of a lifetime of fond memories for generations. In many cases, the sentimental feelings attached to these vacation homes are more pronounced than the feelings attached to the family’s actual residence. It’s not hard to see why.

In our regular homes, kids do homework, complete chores, get disciplined by parents, etc. But at a vacation home, parents tend to relax, kids make fun memories with aunts, uncles, cousins, and siblings. There are often fun activities and lots of good food that go along with the time spent there.

Over the holidays I had the opportunity to spend a few days with my family at just such a vacation home. It was hard to come back to reality after that weekend, but I so enjoyed watching my kids have the time of their lives with their cousins playing in the snow, wrestling, playing hide and seek, beating their uncles in checkers and more.

Special Needs Planning Issues Following Divorce

Divorce can be complicated, frustrating, disappointing, expensive, along with a whole range of other emotions, as anyone who has endured this type of proceeding can attest. As difficult as the issues can be in a divorce proceeding, can you imagine what happens when divorce involves a child with a disability?

We will focus on one case study to illustrate how much more difficult the issues can be when a child with a disability is involved in the marital split, and how important it is to have someone knowledgeable in government benefits and special needs planning issues participate in the proceedings.

The Facts
Consider the following situation: Husband and wife divorce in 1996, when their child, who is disabled, was 4 years old. The husband was ordered to pay approximately $2,800 per month in child support (considered to be about three times an ordinary child support order based upon his assets and income) for the life of the child. While it is unusual to see lifetime child support payments, and the award was larger than is customary, the husband agreed to this primarily because of the guilt he felt around the divorce. He also knew that his daughter was disabled and would require as much help as possible.

Give Your Kids a Gift They Can't Give Themselves, Part II

Last week, I explained how using a spendthrift trust can protect the inheritance you leave to your children from divorces, lawsuits, and creditors that your children may encounter in the future.

However, even in those states that do recognize the validity of a spendthrift trust, there is nothing that you can do to prevent a creditor from attaching (getting their hands on) those assets once they've been distributed to the beneficiary (your child). In order to protect such distributions from the reach of creditors, the creation of a discretionary trust is very effective.

Give Your Kids a Gift They Can't Give Themselves, Part I

What would you say if I told you that you could give your children a gift that they can never give themselves and that this gift could possibly save your family hundreds of thousands, or even millions, of dollars? Sound too good to be true? It's perfectly legal (see the Utah Uniform Trust Code) and fairly simple with an asset protection trust.

Asset Protection Is Not Just for the Wealthy

Because asset protection is commonly associated with offshore planning, such as forming an asset protection trust in the Cook Islands, you might be thinking, "Asset protection? That's only for the ultra rich or for people involved in tax evasion!" But spendthrift trusts (a form of asset protection trusts) are readily recognized by many states and courts (including Utah) as a valid means of protecting assets for third-party beneficiaries (i.e., your children).

It's Graduation Time...Make Sure You Avoid This Mistake

It's hard to believe that another school year is ending already, and for some of you, that means your child is graduating from high school and maybe even going away to college.

It's an exciting time, but did you know that once your child turns 18, you no longer have access to their medical records or their financial information without their permission? Although your graduating senior may always be your baby, in the eyes of the law, he or she is now an adult. And the privacy laws that medical and financial institutions must abide by also apply to your 18-year-old child.

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