Does a trust need to be placed before I file for guardianship over my mother?

2 answers | Last updated: Oct 02, 2016
A fellow caregiver asked...

I don't have a good relationship with my mother and she doesn't like or trust me. That being said,the state has informed me that she is in need of a guardian. I feel obligated, I'm the only child. I don't want the state or anyone else taking control. There is a sizable estate. My question: Does a trust need to be in place before I file for guardianship? Is it too late for a trust if an interrogatory has already been filed?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Your sense of obligation is admirable and understandable. It is also understandable that you might not want a court-appointed guardian to take care of your mother's finances. But do try on the idea for size before you reject it completely.

If you know a trusted family friend or relative who is willing to act as your mother's guardian"”the duties and responsibilities can be tailored according to need"”that may provide a solution if a court agrees that the appointment is in your mother's best interests. In many families, this helps remove some of the difficulties of having a child serve as guardian for a parent"”particularly if there is a history of discord and distrust. In some situations, formerly estranged family members are even able to repair a resume a relationship once the weirdness of one person dealing with another's finances is removed from the table.

And where there is no known person to nominate for the job, some families have been known to reap similar good effects when the court appoints a trained and trusted and bonded guardian to take on the task.

As for the timing of setting up the trust, the law will require that if a straight trust is set up by your mother, she must have the legal capacity to make that move. Hard to guess what exact stage your proceeding is in, but if an interrogatory has been filed, that may signal that there is good evidence that your mother no longer has this legal capacity.

Depending on the types of assets your mother owns, how they're held, and whether there are estate planning documents in place such as a will, it may be possible to establish a type of trust arrangement.

Given the questions involved and your intimation that there is a lot of property at stake, which might also signal that there are potential tax consequences to consider, you would be wise to consider hiring an elder law attorney who is well-versed in both guardianship matters and estate planning to help you through the potential options.

Community Answers

Barbara kate repa answered...

As you know best, the situation you describe is complicated"”and seems to be even more complicated due to the conflicting personalities and opinions on how to best handle things.

The truth is that there is nothing you can do to force a person to sign a power of attorney. Keep in mind that powers of attorney usually don't take effect until a person is mentally incapacitated"”and short-term memory loss, without more, won't activated the authority under them. Before a POA agent can act, the person for whom he or she is acting must usually completely lack the ability to handle finances or make medical decisions. There are some POAs that take effect immediately upon signing, but this is rare when a person is hesitating to act in the first place.

There is also the issue of whether it would be efficient for your husband to serve as both financial and medical agent, especially as long as his mother lives in another state.

It also sounds as if your sister-in-law might object to your husband being named sole guardian for your mother"”and this can signal the possibility of a long and ugly legal battle. In such cases, courts will intercede and take evidence about who is better suited for the job and why. You can imagine that these battles are often protracted and painful, and that slur-slinging family members rarely recover from them.

If one of the children is better at finances and the other better at wading through medical red tape, one possibility may be for them to divide up the power of attorney duties, since neither one seems to want to be cut out of the duty of caring for their mother.

That still leaves the biggest question of where and how your mother-in-law should live. In an ideal although not easy world, your husband and his sister would be able to sit down together and discuss and arrange their mother's care"”taking into consideration her wishes and needs as she expresses them and as noted by the doctors and others who oversee her care.

Some doctors are willing and able to sit in on such family conferences and even help suggest a solution or a compromise. If no such doctor is involved, they might consider going to an experienced family or elder care mediator who may be able to help them reach a solution that works in their mother's best interests.