Many of our clients are unfamiliar with the specifics of guardianship or if it is the right solution for their unique circumstances.
What is guardianship? Is it right for us?
Many of our clients are unfamiliar with the specifics of guardianship or if it is the right solution for their unique circumstances. Essentially, a guardianship is the relationship established when the court determines that an individual (or ward) is incapable of making decisions regarding their affairs. That decision making power is entrusted, through legal order, to another individual, deemed the “guardian.” The guardian then has the legal authority to make medical and financial decisions on behalf of the ward.
Common Guardianship Scenario
The most common scenario is a child or other relative becoming guardian of an elderly loved one who no longer has the capacity to make rational decisions for themselves.
We understand the sensitive, emotional components that are involved when making decisions of this caliber. Providing for the care and well being of an ailing or disabled love one brings with it a substantial amount of stress and pressure without compounding the challenges by having to manage complicated financial issues as well.
Our Compassionate Touch
As such, the specialists at Haskins Short & Brindley LLC provide strive to create the guardianship provisions that govern the transfer of assets and power of attorney in the most personal, compassionate manner possible. Our extra attention to empathy and simplifying the process for our clients truly takes the sting out of providing for the continued care of loved ones and the equitable distribution of their assets.
Please reach out to us to determine if guardianship is an appropriate course of action. We will be happy to explain the process and work with you every step of the way to make sure you are comfortable and informed.
Contact us about your Guardianship needs.
Understanding Guardianship and the Courts
Guardianship is a court proceeding to appoint an individual to make personal and financial decisions for a person who is incompetent. A person is deemed incompetent if he/she is determined by a court to be substantially incapable of caring for him/herself or managing his/her property by reason of developmental disabilities, chronic mental illness or “infirmities of aging” (meaning senile dementia including Alzheimer’s disease).
A guardianship proceeding is started by a petition (usually filed by a concerned family member) filed with the probate court requesting that a guardian be appointed for a person who is identified as the proposed ward. When the guardianship is filed, the court will appoint a lawyer known as a “guardian ad litem” to make an independent determination as to whether a guardian is needed and whether the person nominated as guardian is suitable.
The guardian ad litem will interview the proposed ward. If the proposed ward indicates that he/she objects to the guardianship, the proceeding will become a contested matter and a lawyer (known as advocacy counsel) will be appointed to represent what the proposed ward wants (as opposed to what the guardian ad litem thinks is in the proposed ward’s best interests).
Whether the matter is contested or not, there will be a hearing at which there will be medical testimony (generally in the form of a written doctor’s report, but sometimes involving oral testimony) as to the mental condition of the proposed ward as well as other questions involving the suitability of the proposed guardian.
If the proceeding seeks placement of the ward in a nursing home or community based residential facility (CBRF), there also needs to be an evaluation by the Adult Protective Services Division of the County Department of Human Services. This evaluation determines whether the proposed ward has a condition creating a primary need for residential care, whether this is a condition that is likely to remain permanent and what level of care provides the least restrictive alternative.
A so-called “protective services order” is required for nursing home and CBRF placement of incompetent persons. If protective services in a group home (CBRF) or home care are ordered, the County can be required to pay for these services from Community Options Program Funds, notwithstanding waiting lists. Guardians are required to submit an inventory of the ward’s assets and an annual report of the guardian’s conduct. These reports are reviewed by the probate court, thus insuring protection of the ward.
Any person may voluntarily petition the court for appointment of a conservator to manage his/her assets if he/she feels unable to manage them. No finding of incompetency is required. The conservator takes control of the conservatee’s property and pays his/her bills.
The conservator is required to report annually to the Court on his/her management of the conservatee’s property. This is a good solution for someone who needs help managing property but who is uncomfortable with giving the broad unsupervised authority granted by a financial durable power of attorney.
A trust is a device by which one person, the trustee, manages property on behalf of another person, the beneficiary. The terms of the management and distribution of property are set forth in a written document known as a trust.
A “living” trust is established during lifetime and generally may be revoked at any time. It provides another technique for property management for persons who are no longer willing or able to manage their property on their own. Living trusts can be used as will substitutes by specifying how property will be distributed at death. Trusts can be individually drafted by lawyers or banks will often have basic forms that are used. There are also companies selling living trusts.
One must approach these companies with caution because they often charge excessive amounts, prepare instruments that may not be suitable for a particular person’s circumstances and make inflated claims as to the costs and delays of probate and estate administration. As with any other legal document, review by a knowledgeable lawyer is highly recommended.