Guardianship
If it appears that a loved one will need a legal guardian, I can assist you in the process of becoming a legal guardian. I can also prepare the annual accountings and reports that the court will require after your are appointed guardian. Before you apply for guardianship, it is very important that you explore less expensive alternatives to guardianship that can possibly eliminate the need for a legal guardian altogether. By appointing a guardian, a court is taking away your loved one’s freedom, and courts take this responsibility very seriously. Guardians are under heavy court control, and you will have to provide annual reports to the court.
The following discussion is a broad overview of guardianship, and is by no means an exhaustive discussion of the subject:
A legal guardian is a person or legal entity with the legal authority (and the corresponding duty) to care for the personal and/or property interests of another person. The incapacitated person is called a “ward.” Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to minority, mental incapacity, or physical disability. When a court does have to appoint a guardian, the court will attempt to impose the least restrictive form of guardianship on the ward. One common misconception is that a parent can always act on behalf of their child without being appointed the child’s legal guardian. It is very routine for a child with a large estate to have their parent appointed as a guardian to manage the minor child’s estate. There are two types of guardian – guardian of the person, who makes the health care decisions for the ward, and guardian of the estate, who handles the finances of the ward. Guardianship proceedings that turn into court contests can be very expensive. When a guardianship is initiated there are two, and sometimes three, attorneys on the case. It is not unheard of for a hotly contested guardianship to cost $50,000.00.
Alternatives to Guardianship: The courts strongly encourage that alternatives to guardianship be used. There are many techniques that can be used to minimize the necessity for the appoint of a guardian. The following lists for health care and finances are by no means exhaustive:
HEALTH CARE:
1. DURABLE POWER OF ATTORNEY FOR HEALTH CARE
2. DIRECTIVE TO PHYSICIANS (A.K.A. LIVING WILL)
3. OUT OF HOSPITAL DNR
4. SURROGATE DECISION MAKING FOR NON EMERGENCY MEDICAL DECISIONS FOR AN INCAPACITATED PERSON IN A NURSING HOME OR HOSPITAL
5. SURROGATE DECISION MAKING FOR MENTALLY RETARDED PERSONS
6. SURROGATE DECISION MAKING FOR MINOR CHILD BY NON-PARENT RELATIVE
7. EMERGENCY MEDICAL TREATMENT ACT – IF YOU ARE TAKEN TO AN EMERGENCY ROOM AND ARE INCAPACITATED, YOUR CONSENT TO TREATMENT IS IMPLIED
FINANCES:
1. REVOCABLE LIVING TRUST
2. DURABLE POWER OF ATTORNEY FOR FINANCIAL AFFAIRS
3. PROBATE MANAGEMENT TRUSTS
4. SPECIAL NEEDS TRUST
5. UNIFORM TRANSFERS TO MINORS ACT ACCOUNTS
When a guardianship proceeding is initiated, the court will appoint an “attorney ad litem” to represent the ward. If the ward does not believe that they need a legal guardian, the ad litem is charged with resisting the guardianship. A person who desires to be the ward’s legal guardian will have their own attorney. There may be another attorney appointed by the court called a “guardian ad litem” who essentially provides their independent opinion to the court as to the need for the appointment of a guardian for the ward. In the course of a contested guardianship, there can be numerous motions made to the court, such as temporary restraining orders, and temporary injunctions. Additionally, there can be a mediation proceeding during the course of the guardianship. A person desiring to be a guardian will have to qualify to serve as such. Among other requirements to qualify, a proposed guardian must not: 1. Be a person whose conduct is notoriously bad; 2. Be a person who is found to be unfit to serve due to lack of education, experience, or other good reason; 3. If the proposed guardian owes a debt to the ward and that debt is not paid off before qualification; and 4. A person who is otherwise found to be unfit to serve by the court.
The guardian may have to post a bond. One very important item that a person must consider in deciding whether to pursue becoming a legal guardian is whether their credit rating is good enough to qualify for the bond. Guardianship is called a “dependent administration,” which means that the guardian will be under heavy court control. The guardian of the estate will have to file an accounting to the court every year. The guardian of the person will also have to file an annual report.
As is obvious from the above discussion, it is a very good idea to have documents in your estate plan that can be used as alternatives to guardianship. Documents such as a revocable living trust and/or a durable power of attorney for financial affairs can be used to greatly lessen the need for a guardian of the estate to handle your financial affairs. A durable power of attorney for health care and a living will can be used to greatly lessen the need for a guardian of the person to handle your health care decisions.
By Bill Wollard
Also see Plano Probate Attorney for information about probating an estate.