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Will the Court Automatically Name Your Spouse as Your Guardian/Conservator If You’re Incapacitated?

When a person is not able to make their own healthcare decisions, the named agent in the Healthcare Power of Attorney will act for the incapacitated person. However, if there are no legal documents in place, the court must decide who will be in control over the incapacitated person’s medical and financial decisions. This court process is called Guardianship and Conservatorship.

A common myth is that a spouse can automatically step in and make the health and financial decisions for the incapacitated spouse. The fact is that a spouse can only make the decisions for the incapacitated spouse if there are legal documents in place; if not, a guardianship and conservatorship proceeding must be filed with the court and the non-incapacitated spouse, or anyone else for that matter, has the right to ask the judge to be appointed. This process is humiliating, time consuming and expensive.

This is exactly what happened with Zsa Zsa Gabor.  Zsa Zsa’s daughter from a prior relationship, Constance Francesca Hilton, went to court to ask the judge to be in control over her mother’s health and financial decisions. However, Zsa Zsa’s husband, Frederic von Anhalt, also went to court and asked the judge to be in control over his wife’s affairs. The judge had the daunting task to determine which family member would be the one in charge over Zsa Zsa.

As you can imagine, the judge listened to mountains of testimony over an extended period of time. Hilton alleged to the court that Frederic was not properly caring for her mother’s medical and financial needs. In addition, Hilton also claimed that Von Anhalt kept Zsa Zsa sedated and isolated her from her own family. As these claims were not validated, the Superior Court granted Von Anhalt the ability to oversee Zsa Zsa’s medical decisions. The judge also granted Hilton's request to see her mother weekly. The court assigned several attorneys to oversee Zsa Zsa’s finances.

Luckily, both parties seemed relatively happy about the outcome of the case.  However, the court costs and attorney fees could have been avoided if Zsa Zsa had properly planned with correct estate planning documents. Please get prepared and select whom you would prefer to make vital choices for you should you be unable to make such decisions on your own.

For more information, contact one of our uniquely qualified estate planning attorneys for a free consultation at 888.222.1328.

 

About Morris Hall:
At Morris Hall, we have focused our legal practice on estate planning for over 40 years.  Along with estate planning, our attorneys help clients and their families with matters of probate, trust administration, wills, power of attorneys, business planning, succession planning, legacy planning, charitable gifting and other important legal aspects.  We also have divisions in financial, real estate and accounting to help you incorporate all of your planning together, ensuring that everything works perfectly for your needs and situation. Our Arizona offices are located in Phoenix, Mesa, Scottsdale, Cave Creek, Tucson, Prescott, Flagstaff and Arrowhead.  Our New Mexico offices are located in Albuquerque, Las Cruces and Santa Fe.  Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.

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