Guardianship Estate Planning for Adults with Disabilities

McDermott Will & Emery
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McDermott Will & Emery

Guardianship estate planning statutes allow the court-appointed guardians of the estates of disabled adults to establish estate plans for their wards on petition to the court. Thirty-two states now have statutory provisions that allow estate planning of some sort undertaken by a guardian on behalf of a disabled person.

IN DEPTH


Among these 32 states, guardianship estate planning statutes vary but generally fall into two broad categories. In the first category, guardians have broad powers to engage in estate planning, including executing wills, codicils and trusts. Yet, only seven states allow a guardian to make a will for the disabled person, and these states vary in whether they allow the guardian to make a new will for a disabled person currently without a will, or whether they allow the guardian to make a new will for a disabled person who already has a will.

In the second category are states that either expressly or impliedly leave out the power to make a will or a codicil for a disabled person. In some states, for example, a guardian is granted fairly broad estate planning powers, but the relevant statutes do not provide for the execution of wills or codicils. In other states, guardians are prohibited from making a will for the protected person but are authorized to create revocable or irrevocable trusts of property of the protected person’s estate. And, some states grant to guardians rather broad estate planning powers, but the power to make a will or to make gifts other than to beneficiaries authorized by the statute is expressly prohibited.

In several states, guardianship estate planning is not available at all. In these states, a guardian has the power to manage the property and financial affairs of the protected person but is specifically prohibited from doing so by will or codicil. In other states, the guardianship statute does not refer to any estate planning powers.

Finally, some states allow certain limited guardianship estate planning at common law. When states have common law provisions, they are typically a product of substituted judgment, which effectively limits the scope of guardianship estate planning to following through on patterns of disposition established by the disabled person at times when there was no disability.

During our upcoming webinar, we will discuss the availability of guardianship estate planning across the United States and will outline the planning goals that can be achieved by guardians of disabled adults.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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