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

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 Answer

Barbara Repa, a Caring.com 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.