What to Do If You Are Appointed Guardian of an Older Adult
Guardianship for Older Persons

What to Do If You Are Appointed Guardian of an Older Adult

Being appointed guardian of a loved one is a serious responsibility. As guardian, you are in charge of your loved one’s well-being and you have a duty to act in his or her best interest.

If an adult becomes mentally incapacitated and is incapable of making responsible decisions, the court will appoint a substitute decision maker, often called a “guardian,” but in some states called a “conservator” or other term. Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “ward”).

If you have been appointed guardian, the following are things you need to know:

  • Read the court order. The court appoints the guardian and sets up your powers and duties. You can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, you may or may not have to seek court approval for various decisions. If you aren’t sure what you are allowed to do, consult with a lawyer in your state.
  • Fiduciary duty. You have what’s called a “fiduciary duty” to your ward, which is an extremely high standard. You are legally required to act in the best interest of your ward at all times and manage your ward’s money and property carefully. With that in mind, it is imperative that you keep your finances separate from your ward’s finances. In addition, you should never use the ward’s money to give (or lend) money to someone else or for someone else’s benefit (or your own benefit) without approval of the court. Finally, as part of your fiduciary duty you must maintain good records of everything you receive or spend. Keep all your receipts and a detailed list of what the ward’s money was spent on.
  • File reports on time. The court order should specify what reports you are required to file. The first report is usually an inventory of the ward’s property. You then may have to file yearly accountings with the court detailing what you spent and received on behalf of the ward. Finally, after the ward dies or the guardianship ends, you will need to file a final accounting.
  • Consult the ward. As much as possible you should include the ward in your decision-making. Communicate what you are doing and try to determine what your ward would like done.
  • Don’t limit social interaction. Guardians should not limit a ward’s interaction with family and friends unless it would cause the ward substantial harm. Some states have laws in place requiring the guardian to allow the ward to communicate with loved ones. Social interaction is usually beneficial to an individual’s well-being and sense of self-worth. If the ward has to move, try to keep the ward near loved ones.

Legacy Planning Law Group can help with guardianships.

For a detailed guide from the Consumer Financial Protection Bureau on being a guardian, click here.

How Does Elder Law Protect Seniors from Exploitative Guardians?
Elder Law Attorneys Help Keep Guardians in Check

How Does Elder Law Protect Seniors from Exploitative Guardians?

Orlando Sentinel’s recent article, “DeSantis, Florida lawmakers consider changes in troubled guardianship program,” reports that legislative leaders and officials of Governor Ron DeSantis’ administration met with judges, guardianship trade groups, state attorneys and people from the Elder Law section of the Florida Bar to talk about ways to protect seniors from exploitative or neglectful guardians.

“More must be done to enhance the structure of accountability for guardians to monitor compliance with established standards of practice and ensure that guardians are acting in the best interests of their wards,” Department of Elder Affairs Secretary Richard Prudom said. “The matter is complex, and the solution extends beyond the Department of Elder Affairs; families, local communities, and public officials must also work together to prevent all forms of exploitation to provide safety and security for all.” Elder law attorneys can be very helpful.

The recent news concerning guardian Rebecca Fierle, who investigators say was responsible for more than 400 wards and regularly signed “Do Not Resuscitate” orders for clients against their wishes, has rekindled interest among lawmakers for more control over Florida’s 550 registered guardians.

Senator Kathleen Passidomo and Representative Colleen Burton participated in the meeting and said some of the ideas being discussed include limiting the number of cases each guardian has and requiring a judge to approve a DNR order. Other ideas include increased standards for guardians and more thorough monitoring.

The lawmakers say there’s no need to increase the requirements to become a guardian. All that is required now is a 40-hour course and passing an exam. Passidomo said the issue isn’t a lack of competence, but the risk for abuse.

As a result, standards and monitoring of guardians must be increased. However, these ideas are merely being discussed, as lawmakers have yet to present a concrete plan.

Governor DeSantis will publish a budget request for the Department of Elder Affairs, which includes the Office of Public and Professional Guardians, which could include more funds for investigators to review complaints. The OPPG has only four employees. Prudom has taken control of the department since July, when he asked Carol Berkowitz, the agency’s executive director, to resign because of the Fierle case.

Learn how an elder law attorney can help with guardianships.

Reference: Orlando Sentinel (September 16, 2019) “DeSantis, Florida lawmakers consider changes in troubled guardianship program”

When Do I Need a Power of Attorney?
Power of Attorney

When Do I Need a Power of Attorney?

When do you need a power of attorney? Always. Without a good durable power of attorney, your loved ones will have to go to court if you become incapacitated.

A power of attorney is a legal document signed by the “Principal,” granting the authority to another individual to make decisions on the Principal’s behalf. This document is only in effect during the lifetime of the Principal.

nj.com’s recent article on this topic asks “Who can sign for an incapacitated person if there’s no power of attorney?” The article noted that to have the authority to conduct financial transactions concerning the assets solely owned by the incapacitated person who failed to execute a power of attorney, a guardian will have to be appointed by the court.

A guardianship is a legal relationship established by the court, in which an individual is given legal authority over another when that person is unable to make safe and sound decisions regarding his or her person, or property.

For example, in New Jersey, an application will have to be filed in the probate part of the Superior Court, in the county where the incapacitated person resides.

If it’s not an emergency, a guardian also will need to be appointed to make medical decisions for an incapacitated person who hasn’t signed a health care proxy. This is a legal document that gives an agent the authority to make health care decisions for an incapacitated person. It will take effect, if the person is incapacitated or unable to communicate. The agent will make decisions that reflect the wishes of the incapacitated individual.

It’s typically not necessary to be appointed as an agent under a power of attorney or health care proxy or legal guardian for another person to sign an assisted living or nursing home admissions contract or a Medicaid application.

However, prior to signing another person’s admissions contract, read the fine print to be certain that you don’t become responsible for the bills!

Learn more about the importance of having a good durable power of attorney in place.

Reference: nj.com (July 22, 2019) “Who can sign for an incapacitated person if there’s no power of attorney?”