You may be wondering why the image for this blog post is flip flops at the beach. Last summer I had a near death experience at the beach and became temporality incapacitated myself. I felt that pain when everything changes in a split second. This blog post is an effort to reach you wherever you are reading this today: at work, studying at school, waiting for an appointment —- to share that this happened to me, but I was lucky. The first responders made it to the ER in record time before my entire body shut down, and my hospital stay was a week long. It could have been a lot worse. This blog post is meant to catch you attention to explain that whether through illness, injury, or other means, anyone can require a guardian to become appointed if they become mentally incapacitated. In such cases, if there is no estate planning in place (or insufficient planning) to keep family or other loved one’s out of court, a guardianship, or conservatorship as it is sometimes called, must be established via a court process in the county probate court.
Obtaining guardianship can be an extraordinarily challenging and expensive process. It begins with filing a petition in court for guardianship and requesting the court declare the incapacitated person incompetent. In some cases, these types of filings are made “ex parte”, or in secret, and a guardianship can be established before family or close friends even know what’s happening. In other cases, such a filing can result in a heated dispute between family members and/or friends, who may claim they’d be better suited for the role. Given this, things can get quite costly very quickly.
Of course, this assumes these matters haven’t already been decided through proper and up-to-date estate planning, including a valid durable power of attorney, or even a financial power of attorney, and advanced health care directives, which are the best methods for ensuring this massive responsibility is handled as effectively as possible. Sadly, most people don’t think of the costly possibility of incapacity and therefore leave their families at risk to experience profound sadness as a result of the situation, and confusion at the same time trying to figure out what needs to be done, and what you would have wanted …
If you do have a loved one who needs a guardian, here are some of the things you’ll need to know:
Who can be appointed as guardian?
Unless specified in a valid legal document, any family member or other interested person can petition for guardianship—even a close friend can do it if they prove they’re best suited for the position. That said, most courts give preference to the incapacitated person’s spouse or other close family members. In some cases, the guardian is required to post a bond, which typically requires good credit and some level of deposit to be held in the event of the guardian’s wrongdoing. This bond requirement often disqualifies friends and family, who either don’t have good credit or the resources to post a bond.
If a relative or friend is not willing—or capable—of serving, the court will appoint a professional guardian or public guardian. This is one of the ways that an estate can be drained extremely quickly. If you want to learn more about how this can happen, read this terrifying article about the way public and professional guardians are stealing from our elders.
When are guardians appointed?
A guardian will only be appointed if a court determines there is enough evidence to show a person is mentally incapacitated, such that they can no longer make legal, financial, and/or health-care decisions. This requires evidence presented at a court hearing.
What are a guardian’s responsibilities?
Depending on the extent of the person’s mental capacity, a court-appointed guardian can be given near complete control over a person’s life and finances. Some of the most common duties include:
- Paying the ward’s bills;
- Determining where they live;
- Monitoring their residence and living conditions;
- Providing consent for medical treatments;
- Deciding how their finances are handled, including how their assets are invested and if any assets should be liquidated;
- Managing real estate and other tangible personal property;
- Keeping detailed records of all their expenditures and other financial transactions;
- Making end-of-life and other palliative-care decisions; and
- Reporting to the court about the person’s status at least annually.
The extent of duties the guardian is responsible for is up to the Court, and the guardian will not be allowed to act in areas the Court has not authorized. Moreover, guardians are required to seek the ward’s preferences whenever possible—though ultimately, the decision about what action to take will be in the guardian’s hands.
The Court could also be asked to divide out responsibilities to multiple parties. For example, one person may oversee the financial decisions, while another handles living arrangements and health-care decisions. What’s more, the Court often requires detailed status reports, such as financial accounting, at regular intervals or whenever important decisions are made, such as the sale of assets.
Are guardians compensated?
Yes, guardians are entitled to reasonable compensation for their services based on the person’s financial ability to pay. The appointed guardian is paid directly from the mentally incapacitated person’s estate. In most cases, the compensation must be approved by the Court ahead of time, and the guardian must carefully account for all of their services, the time spent on tasks on behalf of the ward, and any associated out-of-pocket expenses.
Given the huge level of responsibility and loss of control that comes with guardianship, the best course of action would be to get proper and updated estate planning in place ahead of time to ensure that if you or anyone you love becomes incapacitated, you can stay out of the court process altogether if possible because it is a lengthy and expensive process. It also tends to treat all situations the same as the ones they had seen before with resistance to any request that would not be considered “traditional.”
You are reading this blog for a reason. I encourage you to take the next step and contact me to schedule a Family Wealth Planning Session™ first for yourself—and then for the people you love before something happens to make it too late to plan. If it’s already too late and you’re reading this article because you need assistance petitioning a court for guardianship, contact me to let me help you and your family mitigate the risks, hassles, and expense. My teenage son says, “Mom, you are a lawyer people can actually love.” While I don’t expect you to love me, I believe you will love working with me.
This article is a service of Ann-Marie Murzin, Personal Family Lawyer®. I don’t just draft documents; I ensure you make informed and empowered decisions about life and death, for yourself and the people you love. Which is why I offer a Family Wealth Planning Session™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling my office today to schedule a Family Wealth Planning Session™ Office: (908) 377-8060 and Email: email@example.com. To access my online calendar click here.