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guardianship

How to Get Guardianship of an Elderly Parent

How to Get Guardianship of an Elderly Parent

When an older adult loses the ability to think clearly, it also affects their ability to make informed and meaningful decisions. This may occur due to Alzheimer’s disease or other related dementias, stroke, brain injury, mental illness, or other serious health issues. If the person you are caring for is unable to make rational decisions about their health care, their finances, or other aspects of their life, seeking legal guardianship may be necessary to ensure their safety and quality of life.

What Is Guardianship for Elderly Individuals?

Guardianship is an option in cases where an older adult has not appointed a power of attorney for health care or finances and is incapacitated due to advancing age, illness, or disability. Even if an individual has completed a power of attorney (POA) document, guardianship may still be necessary if their POA is not durable, meaning it ends upon their incapacitation. Courts most commonly see family caregivers seeking guardianship for adults with dementia who did not make proper legal preparations for the future.

Read: Durable vs. Springing Power of Attorney: What’s the Difference?

It is important to understand that differences in terminology exist between states. In some states, guardianship gives a person (the guardian) control over where the incapacitated individual (the ward) lives, what health care they receive, and how their day-to-day needs are met. Conservatorship, on the other hand, gives a person (the conservator) the ability to handle a conservatee’s financial decisions, such as paying bills, managing investments, and budgeting. Sometimes these terms may be used interchangeably.

An individual petitioning for guardianship and/or conservatorship must go to court to have the potential ward declared incompetent based on expert findings. If the person is ruled incompetent and the petitioner is a suitable candidate to serve as their guardian, then the court transfers the responsibility for managing finances, living arrangements, medical decisions, or any combination of these tasks to the petitioner.

This process often takes a good deal of time and money. If family members disagree about the need for guardianship or who should act as a guardian, the process can be especially painful, prolonged and costly.

What Is a Court-Appointed Guardian?

A guardian (or conservator) is a person who has court-ordered authority to handle an incapacitated person’s affairs. Guardians have a fiduciary duty to act in the best interests of the person they are appointed to serve. Sadly, it strips the ward of many rights, but it might be the only way to gain the legal authority to make crucial decisions on their behalf.

Who Can Be a Legal Guardian?

At a hearing, the court decides if the person seeking guardianship is well suited for this role. A petitioner’s criminal background, credit history, and potential conflicts of interest are typically factored into this decision.

In cases where more than one person is seeking responsibility for a ward’s needs, the court will determine who is best qualified for the position. Sometimes one person is appointed to handle the ward’s personal and medical decisions (often referred to as guardianship of the person), and another is granted responsibility for managing the ward’s financial matters (guardianship of the property). The ward’s preferences and any valid legal documents that were prepared prior to their incapacitation (e.g., non-durable POA, will, or advance directive) are factored into this decision when possible.

Many states give preference to the ward’s spouse, adult children, or other family members, since they are often most familiar with the person’s unique needs and abilities. If a relative or friend is not willing or qualified to serve in this role, then a professional guardian or public guardian may be appointed.

When Is a Guardian Appointed?

A guardian or conservator can only be appointed if a court hears evidence that the person lacks mental capacity in some or all areas of their life and determines they can no longer make informed decisions for themselves. Allegedly incapacitated people have the right to an attorney and the right to object to the appointment of a guardian or conservator.In rare cases, emergency guardianship may be granted right away if an elder’s health and/or finances are in jeopardy. However, guardianship is a very serious intervention and should only be considered a last resort.

What Does a Guardian Do?

Whenever possible, the guardian or conservator must seek the input of the ward and must only act in areas authorized by the court. Guardians can be given limited or broad authority, depending on what a court rules is needed after a thorough investigation. Sometimes the court delegates responsibilities to several parties. For example, a bank trustee might serve as a corporate guardian to oversee financial decisions while a family member handles personal decisions like living arrangements. Generally, the court requires reports and financial accounting at regular intervals or whenever important decisions are made. Prior court approval is even required for some larger decisions.

Read: What Are the Duties of a Guardian for the Elderly?

Do Guardians Receive Compensation?

All court-appointed guardians are entitled to reasonable compensation for their services. When a so-called family guardian (e.g., a spouse, family member, or friend) is appointed, they typically do not charge the ward for their services. In cases where a private guardian is appointed, these individuals are paid directly from the ward’s estate if they can afford it. In most cases, the compensation amount must be approved by the court, and the guardian must carefully account for all their services, the time these tasks require, and any associated out-of-pocket costs. Public guardians are appointed to wards who do not have friends or family to fill the role or the resources to hire a professional guardian. They are funded by public money, such as government funds and charitable contributions.

Obtaining Legal Guardianship

To learn more about the legal process of seeking guardianship or conservatorship in your state, it’s best to consult a lawyer.

Read more related articles at:

Adult Guardianship

The elder guardianship system in Florida

Also, read one of our previous Blogs at:

The Difference between Power of Attorney and Guardianship for Elderly Parents

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

special needs 18

What Happens When Your Child with Special Needs Turns 18?

What Happens When Your Child with Special Needs Turns 18?

You have a child with special needs, and up until this point you have focused your efforts on the present. You have consistently made sure that your child has everything he or she needs, and you have done what was necessary to ensure that your family has had the financial resources required to adequately provide for your child. But, your child is now quickly approaching age 18, and you are beginning to wonder: What happens next?

This is a very important question. In Florida, a child legally becomes an adult when he or she reaches the age of 18. This is known as “emancipation,” and emancipation simultaneously confers a number of key rights upon the child while also terminating certain corresponding rights that previously belonged to his or her parents. As your child’s parent, you still have every right to continue to support him or her financially and advocate on his or her behalf. However, you will lose rights such as:

In many cases, doctors, educators, and government officials will find that their hands are tied because parents are no longer able to make decisions and provide authorizations on their child’s behalf beyond age 18. This can be challenging for everyone involved, and it can potentially lead to significant negative consequences for children and their parents.

Becoming Your Child’s Guardian in Florida

While there are a few potential ways to address these concerns, the primary means of doing so in Florida is by establishing guardianship. Once your special needs child turns 18, becoming his or her “guardian” allows you to continue to meet his or her needs, the fact that he or she is now legally an adult notwithstanding. Becoming your child’s guardian does not in any way alter your fundamental relationship as your child’s parent. Rather, it simply grants you rights that you would not otherwise have once your child reaches adulthood.

There are several different types of guardianships in Florida, each of which makes the most sense under different circumstances. For example, if your child will need continuing assistance in virtually all aspects of his or her life, then it may make sense for you to become his or her “full plenary guardian.” This requires a legal determination that your child is incapacitated. However, it preserves all of the rights you held as a parent prior to your child’s eighteenth birthday. Florida parents can also petition to become “guardian advocates,” which grants limited authority to assist with medical and financial decision-making for an adult child who is affected by a developmental disability. Alternatively, if your child is legally capable of doing so, he or she can petition the court for a voluntary guardianship or a pre-need guardianship once he or she reaches age 18.

Although the Florida courts recognize the importance of protecting children and adults with special needs, they also recognize the importance of preserving individuals’ sovereignty and independence. As a result, the process of becoming a guardian – even for your own child – is not as simple as filling out and submitting a couple of forms. You will need to work with an attorney to determine which option makes the most sense for your family, and then you and your attorney will need to work together to file an appropriate petition at the appropriate time.

Co-Guardianship for Married and Unmarried Parents

While, thus far, we have been talking about one parent serving as his or her adult child’s guardian, as a practical matter, many situations will involve two parents who wish to become their child’s co-guardians. In Florida, both married and unmarried parents can become co-guardians of adult children who are affected by disabilities – although situations involving unmarried parents will often present certain additional challenges. For example, in situations involving children with special needs, it is possible for the obligation to pay child support to extend past the child’s 18th birthday. As a result, it is important for divorced parents to consult with a family law attorney prior to their child turning 18 years of age.

As the parent of a minor child with special needs, if you and your spouse or partner (or former spouse or partner) reach a disagreement, it is largely up to you to work things out. While this is still the case when you are a co-guardian to an extent, guardianship confers certain additional legal responsibilities and the Florida courts.have a vested interest in ensuring that the guardianships they create serve their intended purpose effectively. Ultimately, co-guardians must meet their legal obligations while also protecting their children’s best interests. And if they are unable to come to terms and their guardianship order does not specify a resolution, then they may need to ask the court to intervene.

Before getting to this stage, however, there are various intermediate steps and tools that co-guardians can utilize. These include pursuing mediation and negotiating with the help of their respective attorneys. As a practical matter, requests for court involvement tend to be reserved for relatively-extreme circumstances in which one or both parents believe that legal action is necessary in order to protect the best interests of their child.

Beginning the Process of Establishing Guardianship for an Adult Child with Special Needs

In order to ensure that there are no gaps in your child’s care or your family’s access to educational or financial programs, it is important to begin the process of establishing guardianship before your child turns 18. This is the case even if you ultimately decide that your child should petition for a voluntary guardianship or pre-need guardianship after his or her eighteenth birthday. You should speak with a lawyer who has experience helping parents of children with special needs, and who can help you thoughtfully consider all of the options you have available. There may be other factors to consider beyond establishing guardianship as well. Here too, an experienced attorney should be able to walk you through everything you need to know.

Read more related articles at:

Your Child with Special Needs is Turning 18 Are They Competent to Make Their Own Decisions?

Turning 18, Guardianship & Other Options

Also, read one of our previous Blogs at:

What Should I Know about Guardianship?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

 

 

 

Elder Law

Elder Law Can Be Scary, But It Doesn’t Have To Be!

Elder Law Can Be Scary, But It Doesn’t Have To Be!

Aging is something we all must go through. As our bodies and minds decline, so do our decision-making powers. Unfortunately, some of us can become incapacitated and no longer be able to make decisions for ourselves. This is a difficult situation for both us, and our loved ones. There may come a time when you need an Elder Law Attorney.

Elder law is another aspect of estate planning, focusing primarily on the needs of families and individuals as they age. Issues of aging include senior housing and home care, long-term (or nursing home) care, guardianships and health care documents, Medicare, and Medicaid.

Planning to protect your nest egg for when, not if, a long-term care event strikes your family may make all the difference in the world when it comes to your ability to leave a Legacy. With a dedicated team and trusted legal counsel, Legacy Planning Law Group knows that the best way to help our clients is to understand their planning needs.

Click here for more information from our website about Elder Law:

https://www.legacyplanninglawgroup.com/elder-law/

Here is also an article that explains elder Law in detail:

What Is Elder Law?

We are here to help you with all your Elder Law needs. We are compassionate, understanding, and empathetic to your needs because we know what it is like to go through this process.

If you are in need of an Elder Law Attorney, or if you are ready to plan for your future, we would love the opportunity to help.

Call us at 904-880-5554 or Book a call here:

https://www.legacyplanninglawgroup.com/book-a-call/

Where you can choose a day and time that is convenient for you.

Also, read one of our previous blogs here:

5 SMART TIPS FOR HIRING AN ELDER LAW ATTORNEY

Don’t wait until it is too late, and it is harder for your loved ones to now give you the loving care you gave them.

Be proactive, plan ahead. Aging is inevitable, why not do it intelligently and gracefully.

 

EP and EL

Elder Law Versus Estate Planning: Not So Different After All

Elder Law Versus Estate Planning: Not So Different After All

How different is elder law from estate planning, really? Estate planning, in part, deals with helping clients plan for disability, minimize taxes at their death, and to help their estate pass to their desired beneficiaries under conditions set by the client. Estate planning can also involve asset protection, retirement planning, and business succession planning.

Elder law involves many of the same issues, but for an aging population. As we age, our needs change – both health and legal needs. For example, in elder law, attorneys often help clients plan for the possibility of needing long-term care and how to pay for it without depleting all of their savings. Elder law can also involve helping clients already receiving long-term care. Helping people with disabilities is also an important area of elder law, as is assisting wartime Veterans in obtaining care-related benefits.

What is estate planning?

Estate planning is a proactive task. It is all about preparing for the inevitable – death. Proper estate plans establish the who, what, and when of what happens to a client’s property after the client’s death. The plan provides a roadmap for families to follow when they can no longer look to the client for guidance.

A client will express his or her desires concerning the distribution of their property after their death, and the attorney will know the best strategies to obtain the desired outcome. This could include drafting one of the following for a client: last will and testament, revocable living trust, irrevocable trust, special needs trust, pour-over will, business formation documents, and documents to transfer assets.

Without a recognized estate plan, the court decides how to distribute the decedent’s property. The results can be devastating to families that have discussed informal arrangements that were not properly established through appropriate planning. Planning for where the client’s money goes, who will care for their children, what happens if they become disabled, whether trusts are in order, and avoiding probate are all important focal points for the estate planning attorney.

Estate planning is an ongoing task. Estate plans should be updated whenever the client experiences noteworthy life changes. Acquiring a rental house, selling an existing home, buying stocks, new children or grandchildren, marriage or divorce are all significant reasons for the estate planning lawyer to recommend revisiting the existing plan.

The estate planning lawyer’s purpose is to minimize estate taxes through trusts, establish caretakers for children, name executors, and identify beneficiaries for IRA’s, life insurance, and other financial assets. Plans also include funeral arrangements, charitable contributions, and personal property distributions. These lawyers commonly create wills and trusts to manage the needs of their clients.

An estate planning attorney will likely draft a durable power of attorney and medical power of attorney for their clients, as a part of their estate plan. These documents give a named person the authority to make medical or financial decisions for the client, should the client become incapacitated. Without these documents in place, a client’s family would have to file a lawsuit against the client in order for a judge to give someone the authority to make these decisions. Finally, an estate planning attorney will likely draft a living will or medical directive for each client. This document states the client’s wishes regarding life support and other medical care in the event the client is incapacitated or otherwise unable to state their wishes.

What is elder law?

Where estate plans lay the groundwork for a client’s desires for their family and their assets after their death, an elder law attorney focuses on the many needs of the senior population. This often includes focusing on preserving assets and obtaining medical care while the client is elderly or incapacitated.

Planning for long-term care, whether in advance of the need for it or when the need arises, is a difficult road to navigate. Qualifying for Medicaid or Veteran’s benefits can be a confusing and strategic process, especially when a client has assets in their name. An elder law attorney can advise a client how to protect these assets in the best manner while qualifying the client for medical benefits as soon as possible. Many elder law attorneys are experts at Medicaid planning for long-term care. Although Medicaid is a federal program, states vary on qualification criteria. An elder law attorney can help a client preserve assets, fill out and submit the Medicaid application, handle any Medicaid hearings or appeals, talk with Medicaid or nursing home employees, and ensure the client continues to qualify for Medicaid.

If an elderly client becomes incapacitated, planning is needed to protect their assets and obtain the necessary medical care. Hopefully the client had the proper estate planning in place and has written documentation of their wishes in the event of incapacitation. Then, the elder law attorney will help the client’s family carry out those wishes in the best manner possible. Does the client require a special needs trust? A conservatorship? How are they going to pay for their medical care? Do they have the proper support network in place to provide trusted and competent care? These are some questions an elder law attorney can help their clients answer.

An elder law attorney will also advise clients on senior rights, age discrimination, elder abuse, and other issues that impact the senior community. Seniors can be targets for crime and discrimination and some will need an elder law attorney to help battle these issues. Many states are recognizing the wide-spread and growing problem of elder abuse and are starting initiatives, such as crime units, to aid seniors in their struggle against crime and abuse. An elder law attorney can assist their senior client in recognizing abuse and crime, reporting it, and making sure their rights are protected.

Expanding Into the Elder Law Realm

Estate planning attorneys write the blueprints for a future event, the passing of his or her client, and help that client protect his or her assets along the way. Elder law attorneys help seniors navigate their changing needs as they age. Many lawyers find that these areas of law often overlap, both in skill and clientele. Because of this, many estate planning attorneys find it useful and beneficial to also offer elder law services. Their existing client-base likely needs elder law services now or in the future. Why not offer more services to existing clientele, with whom the attorney already has a good rapport? It would be advantageous to both the attorney and the client if these additional services were available. Attorneys could increase their workload while the client can stay with the same trusted attorney over their lifespan, as their needs change.

Skills used in estate planning can also be useful in elder law. For example, seniors will need to make sure they have their disability documents in place and have a plan for their assets after they pass. Seniors will have some of the same goals that a traditional estate planning client might have. An estate planning attorney can cross these estate planning skills over into a new area of law, elder law, pathing the way for additional revenue while offering a more comprehensive set of services.

In Sum

For an estate planning attorney, it would be a practical choice to expand their practice to include specialization in elder law areas. Estate planning clients will develop elder law needs at some point during their lifetime. Why not be ready to satisfy them? Even younger clients can succumb to illness or disability and the skills used in elder law could be helpful for their needs. Estate planning attorneys often find it easy to expand on their skills to include elder law, since there are similarities and overlapping between the two. Expanding to include elder law in an attorney’s practice can mean the difference between getting that additional business or the client being referred to someone else that does.

Read more related articles at: 

The Difference Between Elder Law and Estate Planning Attorneys

Do You or a Family Member Need to Hire an Elder Law Attorney?

Do you need an estate plan?

Also, read some of our previous Blogs here:

When Do I Need an Elder Law Attorney?

How Do I Find a Great Estate Planning Attorney?

Click here to check out our On Demand Video about Estate Planning.

conservatorship

Is a Court-Appointed Conservator Personally Liable for Actions Taken?

Is a Court-Appointed Conservator Personally Liable for Actions Taken?

Is a Court-Appointed Conservator Personally Liable for Actions Taken?As a senior ages, they may no longer be able to look after their own affairs. This could be their medical affairs, financial affairs, or both. Hopefully, the senior planned early and had the appropriate powers of attorney in place. These documents allow another to act on the senior’s behalf in the event they are unable to do so.

If a senior did not plan and have the appropriate documents in place, then a guardianship or conservatorship may be necessary. Both entail a court process. In a guardianship, the court would grant someone, termed a guardian, to be in charge of the senior’s person. This means monitoring their day-to-day health, making doctor’s appointments, administering medication, and ensuring the senior has proper hygiene. A conservatorship means the court appoints a conservator to be in charge of the senior’s finances. In both cases, the senior would be termed a ward. A guardian and conservator must act in the ward’s best interests.

Oftentimes, a court might name the same person, say, a family member, as both guardian and conservator. In other cases, the guardian and conservator may be different people. And if there are no appropriate friends or family to be appointed, a professional may be appointed. While the professional must still act in the senior’s best interests, can a lawsuit be brought against the professional if they were acting in accordance with their duties as guardian?

This issue was recently litigated in Massachusetts. In this case, we have Kathleen who had dementia and became unable to take care of herself. Her son, Francis, lived with her and was supposed to be caring for her. After reports surfaced that Kathleen was being neglected and financially exploited by Francis, a court got involved. The court appointed attorney Cherilyn to act as Kathleen’s conservator. Kathleen’s other son, Kevin, was named as her guardian.

Kathleen owned a three-family home but was residing in a nursing home. Kevin came up with a plan to rent out the second and third floors of Kathleen’s home and to have Kathleen reside on the bottom level and receive around-the-clock care via Medicaid. Before that could happen, Francis must leave the premises due to his misconduct towards Kathleen.

Cherilyn attempted to evict Francis from Kathleen’s home, to no avail. Cherilyn motioned the court to get permission to evict Francis and sell the home. Both motions were granted and both tasks were eventually accomplished. Kathleen died a few years later, and her estate was required to reimburse Medicaid for any expenditures made for Kathleen’s care.

Kevin filed a Complaint against Cherilyn for breach of fiduciary duty, malpractice, conversion, and fraud. The trial court ruled in favor of Cherilyn, stating that the claims alleged were “paper-thin” and that Cherilyn, as a court-appointed conservator, had quasi-judicial immunity if she was acting within the scope of her duties. Kevin appealed and the Judicial Supreme Court took on the case.

In analyzing judicial immunity, the court quoted several cases as stating “A judge is entitled to judicial immunity and therefore is exempt from liability to an action for any judgment or decision rendered in the exercise of jurisdiction vested in him [or her] by law.” Immunity would only be denied if the judge acted in “clear absence of all jurisdiction”. The court went on to explain that such immunity was not only limited to judges, but also extends to folks who perform quasi-judicial functions. For example, immunity could be extended to court-appointed psychiatrists, court clerks, guardians ad litem, and personal representatives of an estate.

In deciding if one is entitled to quasi-judicial immunity, the court looks to the function of that person and how close their actions are associated with the judicial process. However, immunity does not apply if the person is acting outside the scope of their duties. In this case, the court ruled that Cherilyn, as conservator and acting under a court order, was entitled to quasi-judicial immunity. The court stated that a conservator was like an arm of the court and was integral to the judicial process.

Importantly, the opinion clarified that if a conservator is acting in accordance with a judge’s order, then the conservator has quasi-judicial immunity as to those actions. However, if the conservator’s actions are not sanctioned by a court order, then those actions are being taken as a fiduciary of the ward and the conservator may be personally liable.

Read more related articles here:

Conservatorship and Guardianship

Conservatorship vs. Guardianship: What’s the Difference?

Also, read one of our previous Blogs at:

Conservatorship vs. Guardianship: Is there a Difference?

Click here to check out our On Demand Video about Estate Planning.

conservatorship, guardianship

Conservatorship vs. Guardianship: What’s the Difference?

Conservatorship vs. Guardianship: What’s the Difference?

Conservatorship vs. Guardianship: What’s the Difference? The needs of the ward will determine which role is appropriate When an individual is in need of care to the extent that they become a ward of the court, the court will appoint a guardian or conservator to help. A guardian assumes responsibility for the basic care and daily needs of a child or of an individual who has been determined to be mentally or physically incapacitated, while a conservator is appointed when a minor or incapacitated adult is in need of an adult to manage their property and assets. The duties of guardians and conservators can overlap, and sometimes the same person is appointed to both roles, but their roles are very different.

What’s the Difference Between Conservatorship and Guardianship?

Conservatorship  Guardianship
Primary responsibilities Managing ward’s financial affairs Managing ward’s personal care and daily living needs
Additional duties May extend to more substantial holdings and assets May extend to securing medical care, education, and minor financial duties
Checks on authority Fiduciary duty, power of attorney, yearly accounting Fiduciary duty, restricted to threshold below $24,000 per year

Primary Responsibilities

Conservatorship vs. Guardianship: What’s the Difference? A guardian is responsible for an elder or minor ward’s personal care, providing them with a place to live, and with ensuring their medical needs are met. Guardians make sure that their ward has a place to live, such as the guardian’s home, with a caretaker, or in an assisted living or full-care facility.

Conservators are appointed for those who are in need of having their financial affairs handled. In cases where wards have more substantial holdings, the conservator becomes responsible for determining whether assets such as real estate and tangible personal property should be bought, held, or sold.

The conservator will maintain ongoing contact with the ward’s financial institutions to ensure that everything is being managed appropriately. The order of conservatorship provided by the court gives the conservator the legal power to make financial decisions on the ward’s behalf.1

Additional Duties

Guardians are also required to make sure minor wards are receiving the education they require in addition to the formerly listed duties, and for receiving any training that the ward might require. Minor financial responsibilities, such as paying bills and purchasing daily necessities, are also tasks for a guardian. A guardian can often make medical decisions on behalf of the ward, although some states limit this power depending on the status of the ward.The conservator uses the ward’s finances to pay the bills, including medical and personal bills. They also make sure income taxes are filed and paid as needed. If a minor ward has liquid assets (able to be converted to cash quickly), a conservator can decide where the funds could be held and who would be responsible for overseeing their investment. The conservator might do this directly or enlist the help of a professional financial adviser. Celebrities who reached popularity while young tend to have some issues once they are able to access their own finances. It is not uncommon for courts to appoint a conservator to manage the young celebrity’s affairs. In rare cases, conservatorships can last much longer than state laws mandate (generally until 18 or 21 years of age).

Checks on Authority

Conservatorship vs. Guardianship: What’s the Difference?    Generally, the guideline of income or benefits of $24,000 per year is used to establish whether a person needs a guardian or a conservator.3 Conservators are used when wards have more financial holdings. A conservator is usually responsible for preparing an accounting of actions they’ve taken on the ward’s behalf, filing it with the court each year. Some states require that a conservatorship must begin with a full accounting of all the ward’s assets and debts at the time the conservatorship is established. The annual accounting typically includes how the ward’s assets have been bought, sold, or invested, and what has been spent on behalf of the ward during the previous year. The accounting should include a plan detailing the medical treatment and personal care received by the incapacitated ward in the previous year, as well as an outline of the plan for the ward’s medical and personal care for the next year. A court-appointed guardian or conservator must also typically file a final accounting of a minor’s assets when the minor reaches adulthood. A doctor’s report might be required from time to time, detailing the ward’s current mental and physical conditions, and can state whether a guardianship or conservatorship is still required.

Which Is Right for Your Situation?

A guardianship may be appropriate if:

  • The ward is a minor with no parents or relatives who can serve as daily caretakers
  • The ward is an adult who is not mentally or physically capable of taking care of themselves and their basic needs
  • The ward has special educational or medical needs that are not currently being provided

A conservatorship may be appropriate if:

  • The ward is an adult who has been deemed legally incompetent to make their own financial decisions, and does not have anyone serving as power of attorney
  • The ward is a minor who has inherited or been entrusted with a large sum of money that would benefit from professional management

When Court Approval Is Required

Guardians and conservators have many duties and responsibilities when given a ward to look after. Depending upon the laws of the state where the ward lives, some of these duties and responsibilities will require court approval, while others may not. Florida law requires that a conservator must get court approval before selling any of the ward’s real estate or personal property.5 Nebraska requires court approval before using the ward’s debit card for withdrawing funds from an account. In Massachusetts, a guardian can’t admit the ward to a long-term care facility or administer certain drugs without a special court order. If you have been granted the privilege of caring for someone as a guardian or conservator, make sure to familiarize yourself with your state’s laws and requirements.

The Bottom Line

A guardian or conservator is considered to be a fiduciary, someone who is legally bound to put the ward’s best interests before their own. Serving as a guardian may demand attention to a wide range of your ward’s needs that cover all aspects of life, or hiring the professionals and services needed so that they receive this care—it’s essentially like being a parent. Being a conservator may be less hands-on, but you will be expected to make sound and often high-stakes financial decisions. These can be very trying responsibilities, so if you have been asked to serve as a guardian or conservator, you’ll need to be sure you have the time, resources, and patience to put into them.

BY: Julie Garber

Updated July 09, 2021

 

Read more related articles at:

Is a Court-Appointed Conservator Personally Liable for Actions Taken?

The Ins and Outs of Guardianship and Conservatorship

Also, read one of our previous Blogs at:

Britney Spears’ Conservatorship Battle with Father Continues

Click here to check out our On Demand Video about Estate Planning.

 

Guardianship

How to Get Guardianship of an Elderly Parent

How to Get Guardianship of an Elderly Parent

Marlo Sollitto Updated 

When an older adult loses the ability to think clearly, it also affects their ability to make informed and meaningful decisions. This may occur due to the onset of Alzheimer’s disease or other related dementias, stroke, brain injury, mental illness or other serious health issues. If the person you are caring for is unable to make rational, clear-headed decisions about their health care, finances or other aspects of life, seeking legal guardianship may be necessary to ensure their safety and quality of life.

What Is Guardianship for Elderly Individuals?

Guardianship is an option in cases where an older adult has not appointed a power of attorney for health care or finances and is incapacitated due to advancing age, illness or disability. Even if an individual has named a power of attorney (POA), guardianship may still be necessary if their POA is not durable, meaning it ends upon their incapacitation. Courts most commonly see family caregivers seeking guardianship for adults with dementia who did not make proper legal preparations for the future.

Read: Durable vs. Springing Power of Attorney: What’s the Difference?

It is important to understand that differences in terminology exist between states. In some states, guardianship gives a person control over where the ward (the incapacitated individual) lives, what health care they receive and how their day-to-day needs are met. Conservatorship, on the other hand, gives a person the ability to handle a ward’s financial decisions, such as paying bills, managing investments and budgeting. Sometimes these terms may be used interchangeably.

To act as someone’s legal guardian or conservator, the individual petitioning for guardianship must go to court to have the ward declared incompetent based on expert findings. If the ward is ruled incompetent and the petitioner is a suitable candidate to serve as a guardian, then the court transfers the responsibility for managing finances, living arrangements, medical decisions or any combination of these tasks to the petitioner.

This process often takes a good deal of time and money. If family members disagree about the need for guardianship or who should act as a guardian, the process can be especially painful, prolonged and costly.

What Is a Court-Appointed Guardian?

A guardian (or conservator) is a person who has court-ordered authority to handle an incapacitated person’s affairs. Guardians have a fiduciary duty to act in the best interests of the person they are appointed to serve. Sadly, it strips the ward of many rights, but it might be the only way to gain the legal authority to make crucial decisions on their behalf.

Who Can Be a Legal Guardian?

At a hearing, the court decides if the person seeking guardianship is well suited for this role. A petitioner’s criminal background, credit history and potential conflicts of interest are typically factored into this decision.

In cases where more than one person is seeking responsibility for a ward’s needs, the court will determine who is best qualified for the position. Sometimes one person is appointed to handle the ward’s personal and medical decisions (often referred to as guardianship of the person), and another is granted responsibility for managing the ward’s financial matters (guardianship of the property). The ward’s preferences and any legal documents that were prepared prior to their incapacitation (e.g., non-durable POA, will or advance directive) are factored into this decision when possible.

Many states give preference to the ward’s spouse, adult children or other family members, since they are often most familiar with the person’s unique needs and abilities. If a relative or friend is not willing or qualified to serve in this role, then a professional guardian or public guardian may be appointed.


When Is a Guardian Appointed?

A guardian or conservator can only be appointed if a court hears evidence that the person lacks mental capacity in some or all areas of their life and determines they can no longer make informed decisions for themselves. Allegedly incapacitated people have the right to an attorney and the right to object to the appointment of their guardian or conservator.

In rare cases, emergency guardianship may be granted right away if an elder’s health and/or finances are in jeopardy. However, guardianship is a very serious intervention and should only be considered a last resort.

What Does a Guardian Do?

Whenever possible, the guardian or conservator must seek the input of the ward and must only act in areas authorized by the court. Guardians can be given limited or broad authority, depending on what a court rules is needed after a thorough investigation. Sometimes the court delegates responsibilities to several parties. For example, a bank trustee might serve as a corporate guardian to oversee financial decisions while a family member handles personal decisions like living arrangements. Generally, the court requires reports and financial accounting at regular intervals or whenever important decisions are made. Prior court approval is even required for some larger decisions.

 

Do Guardians Receive Compensation?

All court-appointed guardians are entitled to reasonable compensation for their services. When a so-called family guardian (a spouse, family member or friend) is appointed, they typically do not charge the ward for their services. In cases where a private guardian is appointed, these individuals are paid directly from the ward’s estate if they can afford it. In most cases, the compensation amount must be approved by the court, and the guardian must carefully account for all their services, the time these tasks require and any associated out-of-pocket costs. Public guardians are appointed to wards who do not have friends or family to fill the role or the resources to hire a professional guardian. They are funded by public money, such as government funds and charitable contributions.

Obtaining Legal Guardianship

To learn more about the legal process of seeking guardianship or conservatorship in your state, it’s best to consult a lawyer.

Read more related articles at:

5 Ways To Know You Need A Guardianship For Mom (Or Dad)

Guardianship

Also, read one of our previous Blogs at:

What Should I Know about Guardianship?

Click here to check out our On Demand Video about Estate Planning.

 

 

helping

What Can You Do to Help Support the Seniors You Love Right Now?

What Can You Do to Help Support the Seniors You Love Right Now?

From Focus on the Family.com

Assisting Aging Loved Ones With Estate Planning

What Can You Do to Help Support the Seniors You Love Right Now? Do you have any advice for me as I attempt to help my elderly mother protect her financial assets and make sure her wishes will be carried out after her death? Wills, trusts, partnerships, probate, power of attorney — I know next to nothing about them. How should we plan her estate?

In response to the growing aging population in the U.S., a new, specialized area of law has emerged over the past several years – elder law. Elder-law lawyers are a relatively new specialty of attorneys who concentrate on handling the often complicated legal affairs of seniors. The National Academy of Elder Law Attorneys (NAELA) maintains a website that includes a series of “Law and Aging” brochures addressing various elder law topics. An elder-law attorney can help you clarify the pros and cons of obtaining a power of attorney, a trust, a conservatorship, a guardianship, Medicare benefits and Medicaid benefits and a number of other legal documents designed to preserve and protect your mother’s assets. You need to be aware of both your rights and obligations as you enter into any of these binding agreements. Here’s a list of the ten most common arrangements:

Will

Every person should have a will. This is a legal document that describes how the person wants her property distributed after her death. A will can contain the name of an executor or personal representative who will take responsibility to see that it is carried out. Unless a will has been drawn up, the state will decide how to divide the person’s possessions and property according to its own guidelines.

Trust

A trust is a document that gives a person the right to manage another person’s money and property. It’s an agreement between your mother (the settlor or trustor) and the individual she appoints (the trustee) to carry out her wishes. Unlike a durable power of attorney, the trust is a long and detailed document that outlines specifically how money and property should be handled. In addition, the trust often remains in effect after the person dies. It can be either revocable or irrevocable, and there are several different kinds of trusts, depending on how your loved one wants to arrange the protection and disbursement of her inheritance.

Letter of instruction

This is a document prepared by your mother and her lawyer. It should contain the names of the individuals to be notified upon her death, funeral arrangements, directions for disposal of personal property, numbers of bank accounts, information on insurance policies, anatomical-gift information, etc. This is not a legal document; it’s just a listing of personal requests to be followed along with the will.

Family limited partnership

This estate-planning tool allows seniors who own their own businesses to reduce the value of the business for tax purposes and to adjust the cash flow received by children who are “limited partners” in the business. It’s a way for a businessperson to protect his or her business and provide for surviving relatives.

Joint tenancy

Husbands and wives quite often have joint ownership of their money, property and other possessions. One form of common ownership is called “joint tenancy with a right of survivorship.” This means that if one spouse dies, the other automatically inherits everything. Other joint-tenancy agreements add an adult child to the agreement. Joint tenancy can help a loved one avoid probate, but it has its drawbacks and it’s certainly no substitute for a will. A lawyer can advise you on the pros and cons of joint tenancy.

Probate

This is the process by which legal title to property is transferred from the deceased’s estate to her beneficiaries. If the person dies with a will (“testate”), the probate court determines if the will is valid, orders that creditors be paid, and makes sure the will distribution instructions are followed properly. If a person does not have a will (“intestate”), the probate court appoints a person to process all claims against the estate. A will can be contested during probate for a variety of reasons.

Power of attorney

Your mother can give someone power of attorney over her affairs. You can have either general or special power of attorney. General power of attorney grants you power to take care of any financial transactions, and sometimes includes the power to make health care decisions as well. A special power of attorney authorizes you to do a limited number of actions for your grandmother. A power of attorney is usually granted only for a specific period of time. A Durable power of attorney, which does not terminate if the person granting it becomes mentally incompetent, involves the creation of a document (with the help of a lawyer) to give a trusted friend or relative the power to make either financial or medical decisions on your mother’s behalf when necessary.

Conservatorship

If your mother becomes legally incapacitated, you can go to a probate court and ask that you be appointed a conservator over her property. Note that this can be done against your mom’s wishes and may cause friction between siblings. So use extreme caution before adopting this plan, and be sure to communicate clearly with other members of the family.

Guardianship

If the court determines that your mother is incapacitated and unable to make her own decisions because of physical or mental disability, you can be named her guardian. She becomes your “ward,” and you have authority to manage her money or property.

Representative payee

If your mother has a disability and is unable to manage a pension or public-benefit income, you may want to consider becoming a representative payee. Social Security, Veterans Affairs, and other public agencies can appoint you to disburse the funds. You should contact each specific agency for an application form.

For more information, you may wish to take a look at the website of the National Association of Area Agencies on Aging. If you could use further information and guidance, please don’t hesitate to give our Gift and Estate Planning staff a call. They would be happy to listen to your concerns and assist you with some practical suggestions. You can contact them Monday through Friday between 8:00 a.m. and 5:00 p.m. Mountain time at (800) 782-8227.

Read more related articles at:

‘Real Housewives’ Ex under Temporary Conservatorship

‘Real Housewives’ Ex under Temporary Conservatorship

Tom Girardi’s brother, Robert, has been named to take care of his daily and personal activities. The news comes a month after Robert filed a petition to be in control of Tom’s estate and ongoing legal battles.

A conservatorship is when a judge appoints someone to manage an incapacitated person’s financial and personal affairs. The conservator’s duties include overseeing finances, establishing and monitoring the physical care of the ward and managing living arrangements.

Screen Rant’s article entitled “RHOBH: Erika’s Ex Tom Girardi Now Under Temporary Conservatorship Due to Illness” reports that Tom and Erika have been entangled in some legal drama since she filed for divorce in November of last year.

Despite the May-December romance (more than 30 years’ difference), they always appeared to be happy together. However, as they battle in divorce, their relationship has turned ugly. Tom refused to pay spousal support, but he has her involved in another legal issue: the couple is being sued by Tom’s former clients for embezzling over $2 million. The plaintiffs say that Tom and Erika stole the money to maintain their lavish lifestyle.

According to Us Weekly, the 81-year-old’s attorney Rudy Cosio said that Tom wouldn’t be able to attend the hearing because he suffered a medical emergency over the weekend. His brother filed a petition in January to control Tom’s estate and legal battle because he’s not currently well enough to handle this on his own. The petition was approved by the judge. Robert was given temporary conservatorship of his brother’s estate, as well as his daily activities and personal matters until the end of March. Another hearing is set for mid-March when the judge will decide whether to grant Robert’s other requests. These include granting him approval to place Tom in facility that treats patients with neurocognitive disorders like dementia.

Robert’s attorney released a statement to Us Weekly on the conservatorship and its urgent nature.

“There was an urgent need for Bob Girardi to have the power to engage counsel in the bankruptcy proceeding on his brother’s behalf, and Tom’s court-appointed counsel clearly agreed, as did the court today,” the statement read.

According to court filings, Robert admitted Tom’s health has been declining since Erika filed for divorce and the embezzlement lawsuit last year. Tom is currently unable to understand the ramifications of the bankruptcy filings pending against him and needs Robert to help him.

In December, it was reported that Tom was secretly hospitalized due to a serious illness. While Tom’s illness is not yet known, many are worried about his mental capabilities.

Reference: Screen Rant (Feb. 2, 2021) “RHOBH: Erika’s Ex Tom Girardi Now Under Temporary Conservatorship Due To Illness”

Read more related articles at:

Erika Jayne’s Husband Tom Girardi Placed Under Temporary Conservatorship Amid Divorce

RHOBH star Erika Jayne’s ex Tom’s brother granted conservatorship over 81-year-old lawyer after ‘medical emergency’

Also, read one of our previous Blogs at:

What Is a Conservatorship?

Click here to check out our On Demand Video about Estate Planning.

 

millennial and parent

Millennials, It’s Time to Talk Estate Planning With Your Parents

Millennials, It’s Time to Talk Estate Planning With Your Parents

Every generation gets it. some stigma as to how they act as a generation. Some say millennials are selfish and uncaring about the future. They have have gotten a bad rap from a lot of generalized society. As with everything, this theory doesn’t hold water. Millennials continue to get older and can no longer be looked at as children anymore. Lots of millennials are responsible adults now. Some are even moving into their forties. This means that Boomers, also known as their parent’s generation. are also continuing to get older, which means, Millennials may need to begin speaking to their parents, whom are Boomers, about estate planning.

Boomers are at the age when it becomes necessary to have the difficult conversations with them, and the estate planning conversation is one of the most important. This discussion goes further than just conversations about wills and inheritance. It is important to discuss power of attorney, living wills, and even death event planning.

You should discuss wills, trusts, inheritance and any documents needed in regard to those matters. Documents for power of attorney or health care proxy will likely need to be discussed. Also, a living will is very important in the case of your parents being unable to do tasks like pay the bills and other things.

These conversations are not easy and are often uncomfortable and difficult to bring up. One way to help this is to approach estate planning as a way to alleviate anxiety and stress and present the idea to your parents as such.

See Erin Lowry, Millennials, It’s Time to Talk Estate Planning With Your Parents, Bloomberg, December 30, 2020.

Read more related articles at:

Millennials, It’s Time To Talk Estate Planning With Your Parents from Financial Advisors Mag

Are You A Millennial? Talk to Your Parents About Estate Planning

Also, Read one of our previous Blogs at:

The Estate Planning Conversation To Have with Your Parents

Click here to check out our On Demand Video about Estate Planning.

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