Submitted by Christopher S. Nudo on
Well hello it's good to be with all of you today and I am attorney chris nudo and I am an estate planning and real estate business transaction and not-for-profit attorney I serve Arlington heights and Elgin well that's where my two offices are located and we basically serve all of the chicago metro area. we do a lot of things focused on the legacy of your family and the continuation of your life even after you have passed away so today is kind of a different kind of day we're gonna discuss guardianship and conservative conservatorship which basically are the same thing but we're going to do it a little bit in light of the life of Britney Spears and so we'll have a little bit of fun it shouldn't go too long today and hopefully it'll be really exciting and you'll learn something through the process so we hear terms on tv such as guardianship and conservative conservatorship and what you'll come to learn is they're basically the same thing defined differently by different states and by different statutes but when you hear that one or the other term you want to think to yourself they're basically the same thing so when you hear the term guardian or conservator they are the same thing now you know Britney Spears very public person in the public eye and what we've witnessed for those who have paid attention is that her wildly successful music career was as equally wildly and crazy with regard to mental health issues and a wildly overbearing very controlling father now just to kind of lay the circumstances out for those of you are unfamiliar let me just briefly tell you that in 2008 basically right after Britney Spears's divorce the divorce wasn't quite final yet but it was almost final Britney Spears's dad named Jamie Spears petitioned the california courts in over in order to become Britney Spears's guardian or in california called a conservator and jamie went as far as Britney's dad went as far as to say that he needed two types of guardianship the first guardianship was guardianship of the person which we will talk about and the second is guardianship of the estate that we'll talk about and of course because they were dealing in california it was conservatorship of the person and of the estate so you know before Britney Spears I would say that this kind of thing went on all the time but was not publicly discussed and so when I say these things i'm talking about all of the events that took place over the ready for this 13 years that Jamie Spears was the conservator for Britney Spears now let's get into a little bit of definition and talk about some of the details first so that the story then can unfold and make a lot of sense to you first of all two different types of guardianship here in illinois we have guardianship of the estate and guardianship of the person beginning with guardianship of the estate this is a person who is in charge of maintaining the financial aspects of the ward whoa a new definition ward what is the ward well first of all when you have a person who cannot take care of their own finances you see them throwing their money in the street literally you know bags of money throw it in the street or you see you know people being taken advantage of or not being able to pay their bills you boy we could come up with all kinds of reasons where people are completely mismanaging their money not because they're bad money managers but because simply they don't have the right cognitive ability to manage their money so as a result they're wasting their financial resources and again not because they're just bad at it but because they don't have the mental capacity to do it correctly this could be a minor for instance so you know you know a 10 year old has no clue the value of ten thousand dollars arguably a twenty year old doesn't really comprehend the value of ten thousand dollars but a thirty year old may or somebody who is very old or sick that has some form of dementia or a disability that doesn't allow them to process any longer financial responsibilities these people when the court deems correct to appoint a guardian for these people these people now are defined as the ward so when I say that steph Britney Spears would be considered the ward and Jamie Spears would be considered the guardian in our example and in the definition of guardian of the estate Jamie Spears would be the person now in charge of Britney Spears's estate this would be her finances where her money comes from how she makes money when she makes money and many other things well who she spends her money with on and for all anything you can imagine with regard to property whether that would be real estate whether that would be clothing or whether it would be some other form of property jewelry as a good example personal property cars but including finances and working and things of that nature are all considered guardianship matters of the estate but then we have guardianship of the person and traditionally guardianship of the person deals with healthcare but it's so much more it's when you can take your medication what type of medication you can take who are your friends who are the people that hang out with you who are the people that influence you whether or not you can drive a car honestly when you really think about guardianship of the person that is a person appointed who really takes over all of your basic human rights that you have because the claim is that the person the ward Britney Spears in this instant was uncapable not able to take care of her basic human rights that she had as a person so so so Jamie Spears Britney's father was appointed conservator of the estate and conservator of the person again in illinois it would be guardian of the estate and guardian of the person the saga started by the way in 2008 and has really unveiled over the last 13 years as a matter of fact there's a whole movement out there that has been coined the free Britney movement free Britney movement and if you want to really watch a really good explanation of all of this netflix has a documentary that I recommend on this whole topic of Britney Spears and what she went through with her father now really quickly just to get to the documentary some of the highlights in 2008 Jamie Spears was appointed guardian of the person and guardian of the estate and the court deemed that Britney's father Jamie Spears alone would not be sufficient to manage such a pop star as Britney Spears so the court appointed a court-appointed volunteer attorney named sam ingham sam ingham and he served as a co-conservator with Jamie Spears for the last 13 off 13 years so let's talk about the purpose again the purpose of a guardian of the estate or guardian of the person is to step into the shoes of the ward or the disabled person and do everything that that person cannot do for themselves and to do it in such a way that it is in the best interest of the ward so as an example with guardianship of the person if a disabled person does not have the mental capacity to know that they should bathe on a regular basis then a somebody who has guardian of the person would make arrangements to ensure that the ward the disabled person got bathed on a basis that was appropriate to keep them clean and safe guardian of the estate same thing purpose is what is in the best interest of the ward of the disabled person and paying their bills making sure they're working if they can and managing their money so their money is you know a good example would be you know you don't take a a person who needs their money earned in steady income who cannot afford to lose their money and take that money and invest invested in highly speculative investments that's a very bad idea so a conservator or a guardian of the estate would manage the ward's money in such a way that it was appropriate for the growth and for the disabled person for the longevity of their life and so that makes sense now there are typically two types of appointments of guardian one is a temporary guardian and it could be a temporary gardening guardian of the estate or a temporary guardian of the person or both and in illinois a typical temporary guardianship can last up to a couple months 60 days and then there is a permanent guardianship and permanent guardianship is just as the term suggests the guardianship goes on perpetually but it doesn't go on unsupervised the whole purpose of guardianship is a court supervised proceeding this is where a judge routinely needs to you need to address the judge the guardian needs to address the judge for matters and needs to be accountable for their items as a matter of fact annually guardians need to go to court and submit an accounting if under the guardianship of the estate and a report under guardianship of the person detailing that their fiduciary duty the guardian's fiduciary duty to the award has been properly handled so now like everything in life there are pros and cons to these type of things we're going to get back to the Britney Spears documentary in just a moment but let's just review the pros and cons of having a guardian or a conservator depending on what state you're in the advantages the pros if you would are that you have a person whether they are a minor or whether they are a disabled adult they cannot manage their own affairs and so a close family member or a coin a court appointed attorney is appointed to do what is best for the disabled person and if you if a disabled or minor person cannot manage their affairs having a honest person who is capable of managing their stuff actually do it and do it well is a very important and it is a is a pro towards why guardianship is a good idea what's the con to a guardianship well a con to a guardianship is when abuses take place you know in guardianship of the person your basic liberties are stripped of you you cannot do the things that you are accustomed to doing you can't have the same friends you the the guardian essentially has all the power of your basic liberties and so in that instant if a person is not fully disabled then taking away a person's basic liberties can be very harmful so it's always very very important that a court weigh all of the medical evidence and circumstances when appointing a guardian whether it be of the person or the of the estate so what are the some of the things that a a court will look at when appointing a guardian well they look at the finances of the person they look at the evidence surrounding why a guardian is being requested there's usually evidence of mismanagement evidence of it could be simply just their age which would be reflective of maturity there could be drug abuse alcohol abuse there could be relationship strain that is creating anxiety there could be mental health issues typically doctors and other professionals are called in to do professional evaluations of the disabled person and it is the reports from those professionals that the court looks at and evaluates to determine whether or not the disabled person or minor is a harm to themselves if there's if there is a harm to themselves either on a financial or a personal aspect then the court may appoint a guardian of the person or of the estate getting back to Britney Spears for a moment people asked why is it that if Britney's father was abusing his privileges as guardian which by the way if you watch the documentary the documentary paints Jamie Spears as abusing his power over brittany now i'm not going to go as far and say that the documentary doesn't lean one way to the left or to the right what I am going to say is this I was not there I was not party to it and so we're gonna hope that in some respects both brittany was benefited from this conservatorship in some way for a period and that Jamie Spears did a good thing for his daughter I do believe that at some point the conservatorship became too much and I think what started out as a good thing became a bad thing and on both sides of the equation right Britney needed help and at some point she didn't need help anymore but jamie's father excuse me brittany's father jamie was not willing to give up the power that he had received and so anyway long and short I think that in the Britney Spears situation it was a good idea that eventually went bad and I believe that on brittany's side it was the same thing it was a good thing that eventually became too much so back to why couldn't Britney go into court and just have this whole thing terminated to why is it that she couldn't demonstrate that she was fine and didn't need her father to be this conservative conservator over her the guardian well if you look into the documents that were presented to the court what you'll find is that the medical professionals that were involved with determining whether or not brittany was competent and capable of managing herself and her financial affairs deemed her disabled to do two things the first was represent herself so she was unable to defend herself but they also deemed her unable to hire an attorney so she was unable to hire an advocate on her behalf and she was unable to advocate on her own behalf thus she didn't have the capacity according to the court by determined by these doctors that she could even go into court and defend herself and get the conservatorship removed now after 13 years obviously this changed she was able to get the court to believe that she had the competency and I think a real big player in this was the court-appointed attorney sam ingham finally recognized that Britney was in a place where this conservatorship had gone too far too long and there was abuse taking place and he advocated with some other people and the free Britney movement in order to sway the court that the conservatorship with Jamie Spears should be terminated so that's kind of the saga around Britney Spears and her guardianship slash conservatorship what let's apply this to illinois and some of the ways that this plays out in most families so first of all I want to say that guardianship is a good thing it's an essential thing but it's also a very inefficient thing meaning that it is very expensive it takes a long time and it is complicated and so it is is very similar to the illinois probate process which has the same negatives to it so when a guardianship is necessary i'm very happy to know that we have a procedure in illinois to take care of people both on their personal side and their financial side but it is a very inefficient very expensive and time-consuming process are there ways in which we can deal with the disability of an adult who can't manage their affairs both on health care or we should call it personal or the estate side and the answer is yes the way we typically handle these things with good estate planning is before people become disabled we prepare documents that are called durable powers of attorney the term durable in illinois means that the power of attorney survives incapacity or disability so if I prepare a durable power of attorney for property and a durable power of attorney for health care using the illinois statutory documents then if I become disabled and incapacitated and can't manage my health care or personal affairs and I can't manage my estate my money and my finances then in those powers of attorney I have appointed somebody like my wife or my children or a brother sister best friend you get the exam you get the point who will step in and properly manage my affairs for me this is a far more cost effective means in which accomplishing the same thing that the conservatorship or guardianship can accomplish the key to this working of course is that you must think ahead and prepare ahead of time and have these documents in place because once you become disabled and can know and you know you lose your cognitive ability you can no longer execute these powers of attorney and thus you're stuck in the realm of guardianship in everything in life there are risks of abuse just like Jamie Spears started out doing the right thing for his daughter and later it's gonna i'm sure it's gonna come out that there were wildly crazy abuses abuses of drug use abuses of medication switching abuses huge abuses of finances i'm sure these are the kind of things that are alleged that eventually will come out that took place with powers of attorney these are similar abuses are possible and you can read about abuses that take place in everything in life not just guardianship not just powers of attorney but you know every person has the ability to be bad and to abuse the powers given to them and so just like in our Britney Spears illustration in your family powers of attorney can be abused if good people are not selected so I always encourage my clients I first of all encourage all my clients they have powers of attorney for health care and for property because better to have these documents in place than have to deal with a guardianship but select people who you believe are gonna have your best interest at in mind and so because you're gonna want those people not to think about themselves but to think about you and care for you in the best way they can so let's take a brief moment here and do a little recap for those of you who are joining me now my name again is Christopher Nudo and i'm the founding partner of an estate planning firm that serves the chicago metro area with offices right now in arlington heights and elgin illinois you know my clientele are everyday folks they're you my neighbors my you know friends and colleagues and other professionals and so I really serve the people as a whole and it's my privilege to do that let's see here every month I provide little tips and information about my practice and how it can help you and today we've been spending the time kind of exploring the concepts of conservatorship and guardianship which are the same thing in kind of using the Britney Spears saga as our backdrop for this illustration by the way that Britney Spears brac that that Britney Spears information can be found on a documentary that is found on netflix kind of a hour and a half fun thing to watch so we've had some questions come in from our audience today and i've kind of previewed some of them that i've seen come in as we've been going along here and i'm gonna pick seven of them real quick we're gonna review those and wrap this up for the day so the first one is if I am concerned that my child will be left with more money than they are mature enough to manage is a conservatorship or a guardianship the right approach the answer is no right off the bat no if a miner is left with more money than they're able to manage and there's absolutely no way to deal with this issue in another manner that then a guardianship or conservatorship will be the only route but it should be the last route that is taken not the answer to the problem the answer to the problem is to do proper estate planning so that a trust is established where or a will that establishes a trust post death so that a trust can manage the finances of the minor until the minor attains a level of maturity that would be that would equate to the amount of money that they have and we do that a lot through living trust these days and or irrevocable trust depending on the circumstances and then we do one example would be age-based distributions so that when a minor becomes certain ages as examples there's tiers like 20 25 30 35 40 45 money is then given to the miner or the adult person based on age and what we're doing in those instances is we're trying to equate age with maturity and that doesn't always go hand in hand but I would say more times than not age and maturity do go hand in hand so the conservatorship and guardianship would not be the best alternative but it is the last resort it would work out just fine when a miner inherits money or comes into money that they're not mature enough to handle that would be the argument by the way in the in the Britney Spears documentary that britney had a drug problem and had too many poor people influencing her life and she had way too much money and so she needed somebody to come in and to manage her money for her proper other documents were not established at this point and so the conservatorship was the right way to go next question who other than family members can control an estate or business as a guardian well first of all you can have a court appointed guardian and or you can have a corporate guardian appointed like a bank if it's a guardianship of the estate and again if you do it outside of guardianship with an estate these people would be trustees if we use trust as planning or an executor and it doesn't have to be a family member it doesn't have to be a friend it could be a professional like an attorney or an accountant really when choosing the right person the court must look at who is going to be least influenced by the personality of the person and who is going to actually manage the estate appropriately and I believe that's why in the Britney Spears situation the court not only appointed the father but appointed sam ingham a volunteer attorney because the court wanted a check and balance here and didn't want the father alone to have all this power all right next question what evaluation process is required to obtain approval for a conservatorship well as I mentioned earlier typically you need evidence of mismanagement and doctors like neurologists and such very often are their evaluations and reports are used to determine whether or not a person is disabled and so you know if you're trying to establish this dementia of a parent or in Britney Spears case her inability due to drug use and other mental instabilities is incapable of managing her affairs this evidence is diagnosed by doctors and other professionals and then submitted to the court for evaluation and determination as to whether or not a guardian of the person or the estate is appropriate do you have to go to court to get a conservative ship put in place well as we've been saying this entire time that is the only way that a guardianship slash conservatorship can be done is by going to court petitioning the court and demonstrating everything we've already discussed how much does it cost to work with an estate planning lawyer well listen estate planning is not a one-size-fit-all kind of situation it is an evaluation in its own right of what does your life look like and when you die or become disabled who are the people that will benefit from your estate and who will be there to take care of you if you become disabled and have incapacity during your lifetime and the cost of working with an estate planning lawyer is insignificant compared to the cost of not planning properly and I know this might count sounds right and like i'm trying to avoid answering the question but that's not the case at all the cost of putting together living trust and all of the accessory documents including the powers of attorney may cost you three to five thousand dollars or more depending on your estate but that pales in the com in comparison to the cost of having to open a conservatorship guardianship or probate of your estate because you chose not to plan properly for your estate before you became incapacitated or you died people want to know do I offer virtual appointments instead of having to come to get come and meet me in person and the answer is yes I do offer virtual appointments but I will tell you this there's nothing better than meeting face-to-face and I understand in light of covet people are reluctant to do that but my experience is we take all the necessary precautions we keep our distance we don't shake hands we wear our masks if appropriate which it is at this time that i'm making that i'm doing this video series and so a face-to-face appointment is great but if we'd like a virtual appointment for sure we set those up and we will get those accomplished so finally where can I contact you to set a consultation well at the bottom of your screen you have numbers that you can call and text also I believe there's my website that has various contact information and you can see that in the lower third of the screen I really hope that this 40 minutes of time that you've spent with me today has been entertaining and educational I cherish the time that we have together and really enjoy doing these kind of video series I enjoy educating my clients i always say that the most educated client is my best client because they really appreciate the services that I provide for them like everything in life i'm just gonna encourage you reach out start the process let's make you smarter and help your family and you in the long run I invite you to join me here again on our next series usually it's friday morning 7:30 central time and you know stay safe out there and god bless have a great day
