Maricopa County Probate Court - Protecting your money, well-being

Many Americans have planned for their eventual demise by drafting wills and writing down instructions for divvying up family keepsakes.

But many have overlooked another issue: the chance that before they die, illness or age will rob them of their ability to take care of themselves or manage their own finances.

Unless a spouse or other relative is available and willing to take over a person's affairs, the Probate Court may appoint a professional fiduciary to oversee care and assets and an attorney to represent the person's wishes. Their fees and others' could drain the assets, especially if a costly feud develops among family members. An Arizona Republic investigation published Sept. 26 found that such scenarios occur in Maricopa County Probate Court, with fees eating up people's life savings and judges doing little to stop it.

There are no ironclad ways to prevent cases like this from landing in Probate Court. But there are legal safeguards, such as trusts and powers of attorney, that can reduce the risk of one's money being left at the mercy of judges, lawyers, fiduciaries and relatives.

And there are practical moves, such as communicating with relatives, that a person can make to lessen the chances that family members will find cause or motive to battle in court and use up the assets.

Financial and legal experts say more than ever it's critical that people take steps to protect their money and assets in case they become incapacitated. As the U.S. population ages, more people will become vulnerable to debilitating illnesses and the number who end up incapacitated will grow.

"Planning ahead is well worth the effort," said Joseph McCabe, a Phoenix estate-planning attorney.

Financial experts say there is no hard-and-fast rule about when people should formally designate someone to manage their affairs. Many create trusts and powers of attorney when they reach their 50s or 60s as a precaution should they ever become incapacitated. But a couple in their 30s might need to do so if one of the spouses is seriously disabled. Younger couples, especially ones with children, also take such steps to ensure that decisions after incapacity or death would be made outside Probate Court.

Just because a couple is married doesn't mean one spouse automatically gets the power to make financial and health-care decisions for the other if he or she loses the ability to make them. Without certain powers of attorney, the spouse who is well may have trouble getting money from financial institutions or making medical decisions.

Cheryl Rhodes, 56, recognized the need for protection.

After her father died in 2003, Rhodes moved her elderly mother, Virginia Gustafson, from California to the Valley so she would be closer.

Rhodes, who lives in Phoenix, said her mother suffered from diabetes and in her final years had short-term-memory problems. But because the family had set up a trust with powers of attorney and named Rhodes successor trustee, Rhodes could make medical and financial decisions for her mother without going to court or incurring extra legal expenses.

"I'm glad she had everything in place," said Rhodes, a beauty and health consultant. "My mother recognized that there would come a time when she might not be able to make decisions."

Rhodes also hired an attorney to set up her own trust, which includes a living will with instructions on terminating artificial life support if the need arises and she can no longer communicate her intentions.

"I did it so my children wouldn't be in a situation where they could be fighting in court," Rhodes said. "To have everything in writing is really important."

by Russ Wiles The Arizona Republic Oct. 3, 2010 12:00 AM



Maricopa County Probate Court - Protecting your money, well-being