Guardianship: Overview of laws STAFF PICK

Frank A Selden

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Estate Planning Attorney

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Posted about 4 years ago. 7 helpful votes

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1

What Guardianship IS

Guardianship is a legal arrangement where someone can handle the affairs of another. The "guardian" is entrusted with the care and custody of the "ward," and this usually includes control of all the assets of the ward as well as business and health care decision-making and substantial control over the affairs of daily living. A guardianship is established by a legal proceeding overseen by a judge or court commissioner who must make a finding that the "alleged incapacitated person" (the AIP) is unable to manage their own affairs and that there are not "lesser restrictive alternatives" which could be used to avoid the imposition of a guardianship. For example, older persons having established powers of attorney in trusted family members or friends who can manage their affairs without the legal determination required in a guardianship. A guardian does not own the ward's assets but manages all assets and any other decisions for the exclusive benefit of the ward.

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What Guardianship is NOT

Some questions in AVVO ask how a parent can turn over "guardianship" for a child to someone such as a grandparent. That is not this issue. The question in parental responsibility filings is not whether the child is capable or not of making decisions (they are not until they turn 18 or are emancipated). Instead, the question is who is legally and financially responsible for the child until that time. While a family court can create a responsible interest over a child, courts less frequently take away a parent's responsibility preferring to keep parents legally responsible for their children. For more on parental custody see the AVVO guide below. Guardianship is also not taking the ward's assets from them to use as the guardian sees fit or just because the person recommending guardianship disagrees with how someone is spending their own money.

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Alternatives to Guardianship

Power of attorney documents (both legal and medical) combined with supportive family or friends can usually accomplish anything a guardianship can. Sometimes an individual does not need a full guardianship. Instead, courts can create other solutions based on the individual's needs which can include: o Representatives or substitute payees. o Case/care management. o Health care surrogacy. o Trusts. o Durable powers of attorney for property. o Durable powers of attorney for health care. o Living wills. o Community advocacy systems. o Joint checking accounts. o Community agencies/services.

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Creating a Guardianship

The normal procedure in a guardianship action is for a petitioner to come forth and ask the court to make a determination that the AIP requires someone else to manage their affairs. Guardianships are thought to consist of two basic types: the AIP my only require assistance with managing financial affairs (guardianship of the estate) or they may require assistance in making medical decisions and other matters more closely related to daily living (guardian of the person). Most commonly both kinds of authority are vested in one person but one or the other may granted alone or they may be vested in different individuals. The petitioner may be a concerned family member, a social worker or sometimes the representative of a guardianship company. Once a petition is filed, the court appoints a "guardian ad litem, typically an attorney, who is supposed to serve as in independent party and conduct an inquiry into the living situation, family situation, daily life, and competency of the AIP.

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Final Steps in a Guardianship

A physician completes an evaluation, and the court reviews the reports from these individuals as well as any other relevant information such as the testimony of a family member or associate or the AIP themself. The judge or court commissioner then weighs all the information and makes an appointment that is considered final unless some party initiates a formal appeal or subsequently brings a successive petition to change that appointment. The AIP has a right to an attorney and the Guardian ad Litem is under a duty to report to the Court any expression of doubt or disapproval of the guardianship that may come from the AIP. Family members, too, have a right and in some cases a responsibility to intervene but, because guardianship litigation is very expensive, all parties should carefully consider the issues and the possible outcomes before initiating legal challenges. They should also weigh the cost of any proposed legal effort against the potential benefit to the AIP.

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Disadvantages to Guardianships

Guardianship laws are based on the premise that, once appointed, a guardian will act in the interests of their ward and the mechanisms for the treatment of any problems that may develop are inefficient, expensive, and uncertain. Guardians have been known to help themselves to the assets of their ward, they may be distracted or incompetent, or they may be driven toward providing and billing for extra services that the ward does not necessary require. In addition, a guardian is given a broad range of power over the life of their ward and even their interaction with friends and family members; for a variety of reasons a guardian may exercise that power in a manner that places their own interests above those of the ward or the ward's family. If someone you know has been the victim of a guardian abusing his or her authority, seek legal advice promptly.

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Guardian Duties

The guardian cares for the assets of the ward and keeps proper accounting in the best interest of the ward. This frequently includes making arrangements for the payment of monthly bills, hiring and firing caregivers, dealing with medical issues, and a whole host of other matters. Generally, the guardian has broad authority to make decisions on behalf of the ward but there may be limits. Sometimes the court will impose legal blocks preventing the guardian to access certain investments formerly held by the ward, for example, and the guardian may not have the ward evicted from their residence without further court order if the ward and guardian disagree about where the guardian shall live.

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Professional Guardians

With national attention on elder abuse and elevating requirements for guardians, guardianship is increasingly becoming a professional business. A professional guardian (PG) is a person not related by blood or marriage to the person with a guardian and who receives financial compensation to carry out the statutory responsibilities given by the court. Professional guardians may also be corporations or institutions such as banks. PGs may be appointed by the court as neutral decision makers in situations where there are no family or friends to serve, when there is severe and irresolvable conflict within the family, or when family members have personal reasons for deciding not to serve as the legal decision-maker for a loved one. PGs are typically not also care givers. Since their background, qualities, experience and areas of expertise vary, issues between PGs and family members can arise from unrealistic expectations by family members, miscommunication or personality conflicts.

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How long does a guardianship last?

Guardianships are normally perpetual as long as the ward remains legally incapacitated and as long as the guardian remains competent and meets the statutory requirements. Only an order of the court that initially established the guardianship can terminate it. If a guardian does not report regularly to the court the guardianship can become delinquent. Reports occur on a regular basis and allow the court to ensure the guardian is making appropriate decisions and managing the client's money properly. A guardianship can be inactivated by the court if the reporting requirements are not followed. Once the guardian is appointed, they receive "Letters of Guardianship". Often, the Letters terminate upon a date, which coincides with the date when the guardians' next report is due. If the guardian fails to report and obtain renewed letters, and the letters expire, the guardian no longer has Court authority to act on behalf of the incapacitated person, although they remain legally responsible.

Additional Resources

AVVO Custody Guide

National Guardianship Association

Center for Guardianship Certification

Guardianship Services, Inc.

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