Guardianships

When a person can no longer care for themselves and fails to execute a Durable General Power of Attorney, the State can appoint an individual or professional organization as a “Guardian” to look out for the incapacitated person’s best interests.

Guardianship proceedings can be a burden for family members and result in conflict. We understand the Guardianship procedure and can quickly get to the heart of the situation. Quick action and efficient preparation can shorten this uncomfortable process.

Guardian of the Estate vs. Guardian of the Person

The Court appoints Guardians to protect and assist incapacitated persons. The type of Guardian the Judge selects will depend on the facts and circumstances. How points are presented can make the difference between success and failure. Proceeding without experienced advice can increase costs and effort, which is why it is essential to have the assistance of an experienced Guardianship Lawyer. If the Judge does not receive the appropriate evidence, she cannot decide.

The Judge appoints a Guardian of the Estate when the Judge determines a person is no longer competent to manage their assets. Furthermore, the Judge appoints a Guardian of the Person if the incapacitated person can no longer care for themselves.

What Does A Guardian of the Estate Do?

A judge appoints a Guardian of the Estate to manage an incapacitated person’s funds. If an interested person believes someone cannot care for themselves, they can have a Guardianship Attorney submit a Petition for Guardianship.

Once appointed, the Guardian of the Estate secures and inventories the incapacitated person’s assets. The Guardian must submit this list to the Judge. The Guardian of the Estate then manages the assets, providing funds for the incapacitated person’s care and providing the Court periodic reports.

Guardian of the Person

A Guardian of the Person takes two forms. First, it is someone you appoint in your Will to raise your minor children. See our Article on the Guardianship of a Minor. Second, a Guardian of the Person can also be appointed by a judge to manage an incapacitated adult’s day-to-day activities. If an interested person believes someone cannot care for themselves, they can have a Guardianship Lawyer submit a Petition for Guardianship.

What Does A Guardian of the Person Do?

The Guardian of the Person for your minor child replaces you at your death. The Guardian is as responsible for your child’s care and well-being as you are. Like a natural parent, the Guardian of the Person must provide the essential items necessary for a child; food, safety, access to an education, medical care, clothing, and socialization. Read more about Guardianship of a Minor HERE.

The Guardian of the Person for an incapacitated adult takes on the same responsibilities as a parent for a minor child. They are to take steps necessary to ensure the incapacitated person is safe, fed, clothed, and provided medical care and socialization.

When the Guardian of the Person is not the Guardian of the Estate.

The Guardian of the Estate might differ from the Guardian of the Person. If so, the Guardian of the Person must collaborate closely with the Guardian of the Estate. The Guardian of the Person needs funds to pay for the incapacitated person’s care and well-being. Then the Guardian of the Estate will need the information to justify these expenditures. The Guardian of the Person will often pay for expenses and then submit for reimbursements. The Judge’s order may provide some flexibility or require the Guardian of the Estate Petition for expenditure payments. The Guardians are subject to a surcharge; personally responsible for errors that harm the incapacitated person.

Formal Accountings and the Guardian.

Because the Guardian of the Estate is personally responsible for errors, filing a Formal Accounting each year is a wise idea. However, the Judge must approve the expense. Generally, the reasonable costs are reimbursable. This includes the cost of an Estate Planning Lawyer assembling and submitting the accounting. Professional Guardians, recognizing their liability, regularly file formal accounts.

Uncontested Guardianship vs. Contested Guardianship.

The Guardianship proceeding can be straightforward if all interested people agree the person is incapacitated and agree on who should serve as Guardian. But to be straight, the Judge needs all the relevant information and evidence. The Guardian appointment is delayed if the Judge believes some evidence or testimony is missing. Taking away a person’s right to control their money and to decide where they spend their day is a serious decision. Therefore, preparation is vital. An experienced Guardianship Attorney ensures the Judge receives necessary evidence and follows procedures.

If there is a disagreement, then the matter becomes a contested hearing. Conflicts include disputes over whether the person is indeed incapacitated, who should serve as Guardian, and the extent of the Guardian’s powers. Preparation is vital for contested guardianships.

Guardianship FAQs

Have Questions About Guardianships? We Can Help!

In conclusion, I would happily brainstorm with you about your Guardianship situation. Representing interested parties in Guardianship proceedings is something we regularly do. Guardianship Estate Litigation is not a part-time job for us! Feel free to set up a phone conference. Contact our office for a free consultation. We try to make the process as painless as possible!

Reasonable Prices | Years of Experience | We Make Guardianships and Estate Planning Easier.

If you have any questions about Guardianships or any other estate planning topics, feel free to contact us to schedule a free consultation. Klenk Law has focused only on Estate Law for more than two decades. We’ve seen it all, and this experience allows us to explain complex estate planning and estate administration techniques clearly and concisely. We make it easy for you to understand Guardianship so you can make the best decisions for yourself and your family.