Q: How can we trigger an automatic gift of assets if we become an ex-parte ward of the state?
My spouse and I’ve been reading about how malicious guardians take advantage of people using ex-parte orders to become legal guardians and then drain the estate.
We’re planning to make a comprehensive durable power of attorney document giving POA to our children and other family members if our children are found incompetent or unable to act as POA for any reason thereby trying to keep control within a family we trust and out of the hands of the state.
However we like to have a backup. If for some reason the court decides that the durable POA is unenforceable, we would like to put in a clause in our will that will trigger an automatic gifting of all our assets to our children / family members if the state performs an ex-parte order and makes us a ward of the state. The question is, is it legal to have such a clause (kind of like a poison pill that many corporate charters have to avoid malicious take overs) in our will (or trust)?
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A: A will only controls disposition of assets after the maker of the will passes. You will need a trust to accomplish what you want, and you will need to transfer your assets to the trust. This is a long way from being a do-it-yourself project. You should hire an estate planning attorney to help you.
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