Guardianships frequently become necessary when an elderly person, a mentally disabled person or a minor are in need of assistance caring for themselves or their estate. There are two different types of guardianships, a guardianship of the estate and a guardianship of the person. In order to obtain a guardian over someone, you must be able to show that the party is incapacitated and therefore unable to manage his or her heath and/or estate. If you believe that someone is in need of a guardianship, we can assist you through the process of obtaining such a guardianship and in maintaining the annual reporting required of a guardian.
In some cases a proposed ward may feel that a guardianship is unnecessary. We can also assist a proposed ward in contesting the guardianship and protecting his or her rights.
Common Guardianship Terms:
Annual Accounting:
A guardian is required to submit an annual accounting for every year the guardianship is in place. The annual accounting provides the court with a review of the ward’s finances over a 12 month period. The annual accounting requires such information as the revenues and income received by the ward and the funds paid by the guardian out of the ward’s estate.
Annual Report on the Condition, Welfare and Well-being of the Ward:
A guardian is required to submit an annual report on the condition, welfare and well-being of the ward for every year the guardianship is in place. The annual report details the mental and physical status of the ward including facts concerning the ward’s heath, social activities and schooling.
Attorney ad Litem:
The attorney ad litem is an attorney appointed by the court to represent the interests of the proposed ward.
Guardianship of the Estate:
A guardian of the estate manages the property belonging to the ward. This responsibility imposes a duty on the guardian to manage the debts, assets and income of the ward’s estate as a prudent person would manage his or her own debts, assets and income.
Guardianship of the Person:
A guardian of the person has the right to take physical possession of the ward and to determine his or her residence. With this right comes the obligation to provide care, supervision, protection and other basic necessities for the ward. Know that funds from the ward’s estate can be used to provide for these necessities.
Incapacitated Person:
An incapacitated person is (1) a minor (2) an adult who, because of a mental or physical condition, is unable to properly provide themselves with food, clothing, or shelter; is unable to care for their physical well-being; or is unable to manage their financial affairs; or (3) requires a guardian to receive funds due from a governmental source.
Temporary Guardianship:
A temporary guardianship can be obtained much more quickly than a permanent guardianship. As the name implies, this type of guardianship is temporary and usually provides the guardian with limited powers. A limited guardianship can only be obtained if the court is presented with substantial evidence that the proposed ward is incapacitated and that there is imminent danger to the proposed ward’s health, safety or estate.
Ward:
The ward is the term for a person who is the subject of the guardianship.
Frequently Asked Questions:
Can I get my loved one to execute a durable general power of attorney instead of obtaining a guardianship?
If a person is mentally incapacitated or a minor, they do not have the legal capacity to executed a legal document such as a power of attorney. However, if their incapacity is merely a physical one and they are in need of assistance with financial matters, a durable general power of attorney can be executed.
Do I need to seek a guardianship of the estate or of the person or both?
The answer to this question depends on the needs of the ward. For example, in the case of an elderly person suffering from dementia, in most cases he or she would not be able to properly manage his or her estate or person. In such a situation, both a guardianship of the estate and of the person should be sought.
Do I have to put up a bond to qualify as a guardian of the estate?
In most cases, a bond is required. The bond will be set by the judge and is determined according to the size of the estate on which a guardianship is sought.
