3 Things to Know about Guardianship
Did you know in cases of illness, injury, or other means, anyone might need an appointed guardian if they become mentally incapacitated? In such cases, without proper estate planning in place (or with insufficient planning), the court process in probate court must appoint a guardian.
Obtaining guardianship can be challenging and expensive. First, you’d need to file a guardianship petition in court and request the court declare the incapacitated person incompetent. A petition and process like this can spark heated disputes between family members and friends. If no one had been appointed through an estate plan, essentially anyone can claim they'd be best suited for the role.
Sadly, most people don't consider the possibility of incapacity, especially for those who are young and healthy today. But in the terrible circumstance of incapacity, you must have the proper planning in place — including a valid durable power of attorney and advanced health care directives — to prevent court and conflict.
Here are 3 things you need to know:
Who can be a guardian?
Any interested person can petition for guardianship if there is no legal plan or document for this situation. Most courts do give preference to a spouse or other immediate family members. In some cases, the person petitioning would need to post bond, which typically requires good credit and money deposited with the court in the event of the guardian's wrongdoing.
Suppose a spouse, relative or friend is not willing or capable of serving. In that case, the court will appoint a professional or public guardian. The expense of a professional guardian can deplete an estate very quickly.
What are a guardian's responsibilities?
Depending on the extent of the person's mental capacity, a court-appointed guardian can have near-complete control over the person's life and finances. The scope of approved duties is up to the court.
Some of the most common responsibilities include:
Paying bills and handling finances
Determining where the person will live
Monitoring their residence and living conditions
Providing consent for medical treatments
Managing real estate and other tangible personal property
Making end-of-life and other palliative care decisions
Reporting to the court about the person's status at least annually
The court can also divide responsibilities between multiple parties. For example, one person may oversee the financial decisions, while another handles living arrangements and healthcare decisions. This adds another level of complexity to the situation for sure.
Are guardians compensated and how?
A court-appointed guardian can be paid a reasonable compensation directly from a person’s estate, and the amount depends on the type of services and the court’s opinion. Many family members who serve as guardians do so without payment.
Don't leave yourself or someone you love at risk. Planning is key to avoid court, conflict and significant expenses in the future.
I Can Help.
As your Personal Family Lawyer®, I can evaluate your assets, assess your level of risk, and analyze your current insurance coverage to be sure you have the optimal level of umbrella coverage in place to safeguard your family’s wealth from today’s lawsuit-crazy culture. Contact me today to schedule your appointment.
