Overview of Guardianships
A guardianship may become necessary if you or someone you know is no longer capable of making their own financial and/or personal care decisions. There are essential three steps in the guardianship process:
1. The determination of mental incapacity,
2. Appointing a guardian for the purpose of carrying out the ward’s personal and/or financial affairs,
3. Accounting to the court regarding the Ward’s affairs.
Legal counsel is required for the appointment of a guardian. In addition, the ward is entitled to legal representation to protect their interests as an incapacitated person.
In our practice, we teach our clients to control their assets while they are alive and well, plan for themselves and their loved ones in the event of mental disability, and then give what they have, to whom they want, when they want. An unexpected mental disability may upset this very important goal. Avoiding a court-ordered guardianship will save your estate time, money and unnecessary publicity. In addition, you and your loved ones will be spared the emotional distress that can accompany a guardianship proceeding.
Guardianship of the Person
In some instances, a person has little or no assets that require the appointment of a guardian but a guardian may still be required to make personal care decisions, such as housing, medical care and personal care. Although financial accountings are avoided, the court will require an annual plan summarizing the past year and outlining the plan of care for the upcoming year.
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Plenary Guardianship
A plenary guardianship may be necessary if a person is incapable of making both financial and personal care decisions. The court-appointed guardian will take over each of these important decision making areas but will be required to solicit the court for permission to spend assets for the benefit of the ward, as well as to account for the ward’s assets and the ward’s care.
One way to avoid a court-ordered guardianship is through proper disability planning. Properly planned and executed financial and healthcare powers of attorney may alleviate the need for a guardianship. As an added measure of protection, we also recommend a Preneed Guardian Declaration naming your choice of guardian in the event a court-ordered guardianship cannot be avoided.
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Limited Guardianships & Guardianships of the Property
Sometimes an individual is capable of making their own personal decisions but incapable of making their own financial decisions. In this case, a guardian of the property would be appointed to oversee the proper management of the ward’s assets.
A guardian of the property could also be appointed if a minor child is a beneficiary in an estate and inherits money prior to the age of 18. This would also be true in the event of a lawsuit settlement payable to someone under the age of eighteen (18).
The court will require at a minimum annual accountings to ensure that assets are being properly managed.
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Guardian Advocacy
Upon attaining age eighteen (18), a child becomes an adult in the eyes of the law. This is true even for developmentally disabled children. A guardian advocacy is a summary form of guardianship designed for families with a developmentally disabled child. In a guardian advocacy, no determination of incapacity is required. A letter from the child’s doctor outlining the child’s condition and prognosis takes the place of an incapacity determination. As with other guardianships, guardian advocacies must be filed with the court in the county of residence and annual reports will be required. In most cases, the child’s parent(s) will be appointed as the guardian advocate.
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Educational Requirements to Serve as a Guardian
A guardian, other than a parent who is guardian of the property of their minor child, is required to receive a minimum of eight (8) hours of instruction and training. A parent appointed guardian of the property of their minor child must receive a minimum of four (4) hours of instruction and training.
In its discretion, the court may waive some of those.
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Definitions
Guardian: An adult individual appointed by a court and granted the legal power to make decisions for another individual (the “Ward”) who is incapable of making their own decisions.
Plenary Guardian: A guardian with the ability to make nearly all decisions for the Ward, combining the authority of Guardianship of the Person and Guardianship of the Property.
Guardian of the Person: An adult individual appointed by the court with the ability to make all decisions of a more personal nature (i.e. medical decisions, residential decisions) on behalf of the Ward.
Guardian of the Property: An adult individual appointed by the court to manage the financial affairs of a person who has been determined incapable of doing so.
Guardian Advocate: A person appointed by the court to represent a person with developmental disabilities.
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