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Estate Planning

Phoenix estate planning attorney

The Difference Between Guardianship and Conservatorship

By | Estate Planning, Guardianship | No Comments

When it comes to stewardship over people or property, there is a lot to consider both personally and legally. At times when the legality of such things is challenged, it can present difficulty to multiple parties. It is always wise to walk such roads with a trusted divorce and family lawyer or experienced estate planning attorney to avoid further complications. However, understanding the basics ourselves can prove very beneficial.

There are two common terms that refer to stewardships: guardianship and conservatorship. But what exactly do these terms mean, and is there a difference between the two?

Guardianship Basics

When we speak of guardianship, it almost always refers to the stewardship an adult has over a child. A legal guardian is deeply involved in the day to day of an individual and can make many decisions on their behalf. Of course, the guardian has the responsibility of feeding, clothing, education, and otherwise caring for the protected party. 

In many states, including Arizona, there are two primary types of guardianship, one of them being full legal guardianship. This is most easily illustrated by the relationship between parent and child. Full legal guardianship persists either until adulthood or until the protected party is found legally fit to care for themself or granted emancipation. In the event of the guardian’s death, guardianship will transfer to the designated party on the deceased’s will or trust. If no party is mentioned, the court decides who cares for the protected party. 

The second type of guardianship is known as temporary guardianship. If a parent or guardian will be absent for a period of time, it is common, and often prudent for them to designate a temporary guardian to care for the protected party in their absence. Temporary guardianship generally has a set timeframe during which the temporary guardian has responsibility. In most cases, applications must be submitted to the court to be legitimized, but in some jurisdictions, the responsibility can be delegated more informally using a letter of guardianship.

Conservatorship Basics

In contrast to guardianship conservatorship generally refers to the stewardship of someone else’s assets or the responsibility to an adult party who is incapacitated or otherwise mentally unfit to take full care of themself.

A conservator, or responsible party, can have conservatorship over the conservatee themself, their estate, or both. If responsible for the estate, a conservator has the duty to protect, preserve, and manage the estate of the conservatee. If granted conservatorship over the individual, the conservator essentially has the responsibilities of a guardian and is tasked with providing for the personal needs of the protected party.

In some states, when the protected party is an adult, the legal stewardship is referred to as limited conservatorship and can pertain either to the person themself or the estate. It is not unusual to have different individuals appointed to each. This is one of the primary differences between guardianship and conservatorship.

Conclusion

To summarize, guardianship and conservatorship are very similar in that they both refer to responsibility for and stewardship of a person or their property. The primary differences lie in age and duty. Most often, guardianship refers to the stewardship an adult has over a child and often includes responsibility for the assets the child acquires. Conservatorship most often refers to the stewardship one has over an adult party who is incapacitated or unfit to care for themself. Conservatorships can be delegated as responsibility for the individual, their property, or both. For this reason, an individual can be appointed more than one conservator.

Both guardianships and stewardships are important terms to know and important for proper estate planning. When organizing a will or trust at any age, it is necessary to consider your stewardships and determine into whose hands they should fall in the event of death. If a proper estate plan is not in place and such things are not detailed, those decisions will be made by the court, an uninvolved party. If you have any questions with regards to guardianship, conservatorship, or estate planning for a more secure future, contact Morris Hall. We would be happy to assist you.

 

 

Tucson living trust attorneys

Can I Modify a Living Trust?

By | Estate Planning | No Comments

Tucson living trust attorneys

A living trust is one of the most popular estate planning tools, due in large part to the numerous and varied goals that can be furthered using a living trust. One of the primary functions of a living trust is to distribute assets to designated beneficiaries. What happens though, if you want to change how those assets are distributed or to whom they are distributed after your trust is in place? To give you some idea of how you can make changes to your trust, one of the living trust attorneys at Morris Hall PLLC explain how to modify a living trust.

Trust Fundamentals

At its most basic, a trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a Trustor, also referred to as a Grantor or Settlor, who transfers property to a Trustee. The Trustee, who is appointed by the Trustor, holds that property for the trust's beneficiaries. A successor Trustee is also customarily appointed in the trust. A trust beneficiary can be an individual, an entity (such as a charity or religious organization), or even the family pet. A trust may also have numerous beneficiaries at the same time, as well as having both current and future beneficiaries.

Is Your Trust Revocable or Irrevocable?

The type of trust you create will directly impact your ability to modify the trust. Living trusts can be sub-divided into revocable and irrevocable living trusts. If the trust is a revocable living trust, as the name implies, the Trustor may modify or terminate the trust at any time and for any reason. An irrevocable living trust, on the other hand, cannot be modified or revoked by the Trustor at any time, nor for any reason once active. It may be possible to modify or terminate an irrevocable living trust by agreement of the beneficiaries and/or by court order, but never by the Trustor.

Consequently, if you create a revocable living trust you have the ability, as the Trustor, to modify the trust at any time. If, however, you created an irrevocable living trust, you cannot modify the trust. The terms of the trust will dictate whether the trust beneficiaries are able to do so or not; however, under no circumstances may you modify the trust on your own. If the beneficiaries cannot modify the trust, you will need to petition a court for the right to modify or terminate the trust.

How to Modify Your Revocable Living Trust

Once you have established that you have the authority to modify, or even revoke your trust, you must decide which method to use to carry out the modifications. There are three ways in which you can modify your revocable living trust, including:

  • Creating a trust amendment. An amendment is your best option when the change you wish to make is minor and the trust has not previously been amended, or the previous amendment was also minor. To amend a trust, you locate the provision or term in the original trust agreement that needs to be modified and explain in detail the change you wish to make to the original agreement on a separate document. That document, known as the amendment, is then attached to the original trust agreement. State law may require you to sign the amendment in front of a notary and may require that the Trustee sign the amendment as well.
  • Creating a trust restatement. When you have more extensive modifications you wish to make or the trust has been amended several times already, a trust restatement is generally the best option. A trust restatement involves rewriting the original trust agreement with the changes included. You must be clear that you are not revoking the original trust, but simply restating it. Like an amendment, you may need to execute the restatement in front of a notary and the Trustee may also need to sign the restatement.
  • Revoking the trust. You may wonder why you would want to go to the trouble of “restating” the original trust if it effectively requires you to rewrite the entire trust agreement. Why not simply revoke the trust and start from scratch? The reason why a restatement is almost always preferable to revoking a trust is that when you revoke the trust, all assets held by the trust revert back to the original owner and must then be transferred back into the trust once again. Doing this can have a number of unwanted ramifications, including tax consequences.

Contact Phoenix Living Trust Attorneys

For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about creating or modifying a living trust, contact the experienced Phoenix living trust attorneys at Morris Hall PLLC by calling 888-222-1328 to schedule your free consultation today.

Shrunken Asset Values Open Estate Planning Opportunities

By | Estate Planning, Legal Education | No Comments

COVID-19, the novel coronavirus, has been a challenge confronting countries around the world. Not only has COVID-19 been challenging healthcare systems, but the social distancing required to combat the virus has also rocked financial markets. However, there may be an opportunity for those wishing to do certain types of Estate Planning. Read on to learn more.

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