Guardianship

Guardianship

We provide comprehensive legal services involving guardianships established in court. This means we assist potential guardians, appointed guardians, and those concerned with the care for loved ones. In doing so, we walk through the qualification process and ongoing reporting requirements. Being a guardian comes with many responsibilities. The day-to-day requirements are physically taxing in many situations. You may also deal with emotional issues. Regardless, having someone in your corner that makes the bureaucratic portion easier for you. Our firm can help.

Guardianship Defined

Probate court appoints guardians for wards who cannot care for themselves. Guardianships formally create responsibilities for adults to care for those who cannot care for themselves. Generally, guardianships act as the last resort when it is impossible for the person to care for himself. This means that probate courts look for less-restrictive ways to care for the ward.

Fiduciary duties

Guardians owe wards a fiduciary duty of care. This means that guardians must act in the best interests of their ward. Guardians must protect the ward and the ward’s property. This high standard leaves little room for error when it comes to serving as a guardian.

In addition to serving as fiduciary for the ward, the guardian must follow court orders. Probate courts serve as the ultimate guardian for all incompetent individuals in the state. This means the court supervises and monitors guardians fulfilling their duties. Probate court may punish or remove guardians who fail to follow court orders.

Court ordered duties

Guardians protect the ward and manage affairs that probate court assigns. This encompasses physical, financial, and mental affairs. Guardians may oversee the day-to-day care or hire professionals. Moreover, a guardian may handle the financial affairs of an incompetent. This ensures the ward’s money is not wasted. A guardian protects the mental health of the ward by ensuring the ward receives proper treatment.

While guardianship itself is very restrictive for the ward, guardians must try to make it as least-restrictive as possible. For example, if wards need outpatient treatment, he should exhaust this avenue before in-patient care. The dignity of all wards entitles them to live as freely as possible so long as they do not pose a threat to themselves and others.

Informed Consent and Confidentiality

When possible, guardians should provide their wards with informed consent. This means guardians should tell the wards how they intend to act and receive their ok before doing so. Of course, there are limits to this. When this occurs, the guardian must continue to act in the best interests of the ward.

Guardians should respect the sensitive information that belongs to their ward. Again, the dignity of the ward is paramount and his right to privacy should be respected. Unless someone crucially needs information to serve the ward, a guardian should protect this information as much as possible.

Guardian requirements

Probate courts do not appoint anyone as a guardian. In order to qualify, a guardian must be eighteen years old and of sound mind themselves. Guardians must submit to and pass a criminal background check. In some instances, courts require a credit check as well. This helps ensure that guardians will not spend the ward’s money out of desperation.

Guardians must attend an introductory course on becoming a guardian that lasts six hours. This requirement is a one-time need. However, guardians must then receive three additional hours every year. The purpose of this education is to refresh guardians of their duties and provide insight on best practices.

Sometimes, probate courts require guardians to pay a fee for their application or assist in administering the guardianship. Oftentimes, guardians are required to post a bond equal to the value of assets of the ward. This helps ensure that the guardian is capable of protecting financial assets of the ward. Bonds help protect wards by ensuring that guardians fulfill their court-ordered duties.

Situations Requiring Guardianship

Probate courts issue guardianships in several cases.If the ward is unable to act for himself either under law or under medical opinion, then he is a guardianship candidate. A traumatic event can cause this. Likewise, a slow slide in health may lead the ward requiring a guardian. While guardianships come from many different circumstances, the guardians must continue to act in the best interest of their wards.

Health

A person may need a guardian due to a decline in their health. Diseases could reduce mobility, lucidity, and independence when it comes to daily functions. The probate court may appoint a guardian for those in a coma. In order instances, the loss of one’s physical health due to age may require a guardianship.

Injury

The results of a debilitating injury may require the appointment of a guardian. Car accidents leading to brain injuries can require them. Permanent physical disabilities can lead to a guardianship. These situations may emotionally drain the guardian who may recall more independent days. In these cases, a solid support team is helpful for both the guardian and the ward.

Mental illness

Mental illness commonly causes guardianship cases in probate court. These circumstances require frequent treatment. Mental illnesses may manifest off and on. However, if it is persistent or chronic enough to make it impossible to perform daily activities, probate court will appoint a guardian.

When it comes to minors, guardianship is a bit different than custody. When someone has custody over a minor, it is presumed they act as their guardian. However, probate may still require guardianships in certain cases. Perhaps the most common instance is when children come into money. Sources for this may include inheritances, lawsuits, and death benefits. In these situations, the children are presumed incompetent under the law to handle finances. Therefore, courts appoint guardians to manage the finances. In other situations, family members may become guardians when parents are unavailable or out of state.

Special needs

Individuals with special needs may require guardians if they are not competent. This can include developmental issues or concerns that come up later in life. Like with other circumstances, if someone is unable to make decisions or manage expenses, courts may consider them to be incompetent. It is important for guardians in these to ensure the ward has access to wraparound services and tools such as STABLE Accounts that can assist in improving their life.

Sometimes, a person may find it difficult to pinpoint the exact reason why someone is incompetent. Luckily, courts do not concern themselves with labels. Instead, courts conduct competency hearings. In the guardianship process, there must be evidence where doctors determine an individual to be incompetent. Once there is a competency report from a doctor, the court conducts a formal hearing. This allows family members, friends, or even the potential ward to challenge the finding. This helps ensure that all less-restrictive alternatives are exhausted before a guardianship.

Types of Guardianship

Guardian Over the Person

Probate courts appoint guardians over the person in instances where the day-to-day independence of a ward is limited. When this occurs, the guardian ensures that ward receives proper care. The guardian may provide this care directly. The guardian may also hire someone else to do this. Regardless, the guardian is still responsible for the work getting done.

When a guardianship over the person occurs, the guardian has custody and control over the ward. However, the guardian must balance this control with the least restrictive means possible for the ward. In this case, the guardian makes decisions when it comes to healthcare. Although the guardian must attempt to obtain the ward’s informed consent when possible. The guardian also controls what treatment the ward receives.

Providing constant care and control for the ward can be expensive. When the ward has assets, the costs come from them. In many other instances, government benefits and services cover the costs. The ultimate goal is for the guardian to run the service as cost-neutral as possible. Unfortunately, this is not always a guarantee.

Guardian Over the Estate

While guardians over the person involve the body of the ward, a guardianship over the estate deals with assets. A guardianship over the estate imposes a fiduciary duty on a guardian to control the ward’s assets. This includes managing the ward’s finances. A guardian must submit an accounting to probate court to demonstrate how funds were used every year. Sometimes, this requires tough financial decisions for the ward.

Both the Person and Estate

Some wards need both financial and day-to-day assistance. In these instances, courts will appoint guardians to serve both over the person and the estate. This person must manage all the aspects necessary to provide the ward with sufficient care and protection. A court may make limitations on a guardian’s role in order to provide more freedom for the ward or due to another circumstance. In these instances, it is important for the guardian to understand the duties and limits of his power.

Length of Guardianship

Emergency Guardianship

Courts may grant a guardianship on an emergency basis. This occurs when a court determines that the ward is at serious risk of harm. When this occurs, a hearing must be set soon after the granting of emergency guardianship to see if the solution has been remedied. If not the court may put a clear temporary guardianship or a long-term one. For example, if someone must make a medical decision for an incapacitated person without a power of attorney, the court can appoint an emergency guardian to allow them to make the decision.

Limited Guardianship

A limited guardianship occurs when a ward needs help for a short period time or for a specific purpose. For example, if a child’s parents are overseas without granting interim custody, a limited guardianship may occur until they return. These types of guardianships are less restrictive and may expire on their own if no longer needed by parties.

Indefinite Guardianship

Some guardianships must last for the ntireo life of the ward. If the initial guardian dies, a substitute must be named. Regardless, probate courts may only relieve these wards if there is a competency proceeding labeling the ward as competent. These are rare, but not completely unheard of by the court.

Guardianship Alternatives

Guardianships restrict the lives and freedoms of wards. Not only are the wards unable to make decisions, they often did not decide who would serve as their guardian. One may avoid becoming subject to a guardianship by executing a valid power of attorney that springs into action once you are declared incompetent. In these situations, you are in control of who is your agent, what powers you wish to give them, and when their services are no longer needed.