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Senior Edge Legal Blog

Friday, February 17, 2012

Pitfalls of Being a Guardian/Conservator

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

“It’s your fault” may be true if you help a senior update their estate plan after you have been appointed by a court as conservator/guardian for a senior who has trouble taking care of themselves and their daily business.

What kind of “fault”?  Idaho law lists a number of standards for someone appointed by the court to help others.  If you are a conservator/guardian, you have many responsibilities to the person (the “Ward”) you are officially responsible to help.

Some of the responsibilities are to account to the Court at least once each year about their health, their finances and how they are doing in their living situation.  One major pitfall concerns the estate plan of the person you have been appointed to help.

There is a new Supreme Court Case in Idaho, Jason Rogers vHousehold Life Insurance Company, March 18, 2011) that clarifies the law of estate planning for incompetent persons.  Under the law in Idaho, if someone is determined to be incompetent (that means they are mentally or physically incapable of making decisions), they cannot change their estate plan for any parts of their estate plan that involve a contract, nor can the Court appointed guardian/conservator act on their behalf.  What does this mean?  The Idaho law states if a Court has found a person incompetent, that person also lacks the capacity to contract.  They cannot change the beneficiary on a life insurance policy, an annuity, a “paid on death” (p.o.d.) or “transfer on death” (t.o.d.) account.

Perhaps the person who has been determined “incompetent” has a “good day” where they are engaged, in the present, and know what is going on.  Even on that day, if they change the beneficiary designation on an asset or their guardian/conservator makes the change at their request, the change can be set aside, and the guardian/conservator is a sitting duck for a lawsuit by the original beneficiaries of the asset.

Watch out if you have been appointed by a court to help!  You could be sued for taking a “common sense” step on behalf of a person you are responsible to help.

P.S. We have an office flag!  Some people have trouble finding our office on the south side of Fort Street, between 10th and 11th, so we now have a white and green flag hanging near our front door to make it easier to notice.  Happy late winter, early spring to you.  My witch hazel has been blooming for 3 weeks and I have seen my first crocus blooming in my yard.  Yeah!


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Located in Boise, Idaho, Attorney Susan M. Graham serves clients throughout Ada, Elmore, Canyon, Camas, Gem, Valley, Idaho, Boise and Blaine Counties, including the communities of Boise, Meridian, Nampa, Caldwell, Kuna, Emmett, Middleton, Ketchum, Hailey, Sun Valley, Mountain Home, McCall and Cascade.



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