An often overlooked benefit of proper planning is the avoidance of court-supervised procedures in the event of incapacity. Assets held in a revocable trust can continue to be managed by the designated successor trustee, and in many circumstances a durable general power of attorney for property can be effective for the same purpose. For added flexibility, specific provisions can be incorporated in such powers of attorney to authorize the agent to take certain steps to carry out the incapacitated person’s estate plan. Similarly, durable powers of attorney for health care, living wills or advance health care directives not only set forth an individual’s wishes with respect to medical treatment, but can designate an agent to make medical decisions during any period of incapacity.

Conservatorships

By designating successor fiduciaries and agents, we attempt to provide for our clients’ possible incapacity without unnecessary cost or court supervision. For those without such estate planning mechanisms in place, however, it may be necessary to establish a court-supervised conservatorship of the estate. At Morris, Hall & Kinghorn, our services extend to determining when such a conservatorship might be necessary, establishing the conservatorship, and providing ongoing advice to conservators – whether family members or professional fiduciaries – with respect to their rights and powers under both state law and the guidelines set by the court.

Guardianships

The trusts we create for our clients’ children and grandchildren as part of our clients’ own estate plans can also avoid the need for a court-supervised guardianship for a minor – the equivalent of a conservatorship for an incapacitated adult. Minors may not hold legal title to property. Therefore, assets inherited by a minor or received by a minor in a settlement agreement, which do not pass to a trust for the minor’s benefit, generally must be held by a guardian of the estate appointed and supervised by the court. We assist in establishing such guardianships and in advising the guardians as to their responsibilities for the minor’s assets. In appropriate circumstances we may be able to establish a court-supervised trust instead of a guardianship, which can allow greater flexibility.