When a person is no longer able to care for themselves and failed to execute a Durable General Power of Attorney, the State can appoint an individual or professional organization as “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 Guardianship procedure and can quickly get to the heart of the situation. Quick action and efficient preparation can shorten this uncomfortable process.
The court appoints Guardians to protect and assist incapacitated persons. The type of guardian the judge appoints will depend on the facts and circumstances. How facts are presented can make the difference between success and failure. Proceeding without experienced advice can increase costs and effort, which is why it is important to have the assistance of an experienced Guardianship Lawyer. If the judge does not receive the appropriate evidence, she cannot make a decision.
The judge appoints a Guardian of the Estate when the judge determines a person is no longer competent to manage his or her assets. Furthermore, the judge appoints a Guardian of the Person if the incapacitated person is no longer able to care for themselves at all.
A Guardian of the Estate is appointed by a judge to manage an incapacitated person’s funds. If an interested person believes that someone is unable to 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 providing the court periodic reports.
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 Guardianship of a Minor. Second, a Guardian of the Person can also be a person appointed by a judge to manage an incapacitated adult’s day-to-day activities. If an interested person believes that someone is unable to care for themselves, they can have a Guardianship Lawyer submit a Petition for Guardianship.
The Guardian of the Person for your minor child replaces you at your death. The Guardian is responsible for your child’s care and well-being just as you are. Like a natural parent, the Guardian of the Person must provide the basic 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 would for a minor child. They are to take steps necessary to make sure the incapacitated person is safe, fed, clothed, provided medical care and socialization.
The Guardian of the Estate might be a different person from the Guardian of the Person. If so, the Guardian of the Person must work in close collaboration with the Guardian of the Estate. The Guardian of the Person needs funds to pay for the incapacitated person’s care and wellbeing. The Guardian of the Estate will need information to justify these expenditures. Often the Guardian of the Person will pay for expenses and then submit for reimbursements. The judge’s order may provide for some flexibility, or it might require that 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.
Because the Guardian of the Estate is personally responsible for errors, filing a Formal Accounting each year is a wise idea. Though the judge must approve the expense, generally the reasonable cost of retaining an Estate Planning Lawyer to assemble and submit the accounting is reimbursed as a normal cost. Professional Guardians, recognizing their liability, regularly file formal accounts.
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 straightforward, the Judge needs all the relevant information and evidence. If the judge believes some evidence or testimony is missing, the Guardian appointment is delayed. 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. Examples of disagreements include disputes over whether the person is truly incapacitated, over who should serve as the guardian or the extent of the guardian’s powers. Preparation is vital for contested guardianships.
When someone uses the term “Legal Guardianship,” they are likely explaining that Judge has found a person incapacitated and appointed for him a Guardian of the Estate or a Guardian of the Person.
A person becomes a Guardian of the Estate or Guardian of the Person by Petitioning the Court and obtaining a determination that someone is incapacitated. The judge then appoints this person a Guardian of the Estate and or a Guardian of the Person.
This refers to the process where an interested person has a Guardianship Attorney file the necessary petition and present the necessary evidence to obtain a declaration that someone is legally incapacitated. After this determination, the court may appoint a Guardian of the Estate and a Guardian of the Person.
A Limited Guardian of the Estate is typically named when the Pennsylvania Orphans’ Court Judge determines that the Ward is not fully incapacitated, but does need a Guardian’s assistance. The Court will appoint a Plenary Guardian of the Estate when the Pennsylvania Orphans’ Court Judge determines the Ward is totally incapacitated, and the Plenary Guardian is given control over all of the Ward’s assets and financial matters.
If a wrongful act renders a person incapacitated, they are unable to pursue their personal injury case. An interested person can have a Guardianship Lawyer petition the court to appoint a Guardian of the Estate. This Guardian can pursue the personal injury case on the injured, incapacitated person’s behalf.
In conclusion, I would be happy to 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!
If you have any questions about Guardianships or any other estate planning topics, feel free to contact us to schedule a free consultation. For more than two decades Klenk Law has focused only on Estate Law. 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.
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Peter Klenk is an extraordinary attorney with positive guidance and knowledge for all of your Trust and Estate needs. We have used him for over 20 years.
Peter explained a complex subject very clearly, helped us to decide the best approach to managing our estate and then made it very easy for us to execute the required documents. He will be a valuable resource for years to come and clearly has a great understanding of estate law that will lead to innovative solutions for us. I would unhesitatingly recommend him for estate planning.
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