Guardianship Law

Guardianship is the legal process of having a person, the Ward, being declared legally incompetent meaning they are unable to manage their financial affairs and make healthcare decisions. A Judge will appoint a Guardian, typically a spouse or a child, to manage the affairs of the Ward and make all financial and healthcare decisions for the Ward. This process typically takes one to three months to complete and can cost upwards of $1500 to $2000 or more in legal fees and court costs. An annual accounting of all the person’s income and expenses is required each year costing additional and ongoing legal fees and court costs.

If someone has a Revocable Living Trust then a Guardianship may not be needed if all assets have been properly placed into the Trust. If a person subsequently becomes incapacitated then the Co-Trustee, usually a Spouse, or a Successor Trustee, usually a Child, can take over and manage all of the person’s financial affairs and pay all their bills as Trustee of the Trust. This often, but not always, eliminates the need for a Guardianship.

The best way to avoid a Guardianship is to pre-select who will manage your affairs and make financial and healthcare decisions for you if you are unable to do so. The best way to do this is with a Durable Power of Attorney. To cover all situations you would specifically need these four legal documents:

A. Durable Financial Power of Attorney

B. Durable Healthcare Power of Attorney

C. Living Will Declaration

D. HIPAA Authorization

These four documents would allow a spouse or child, to make decisions and manage your affairs which is exactly what a Guardian is appointed to do. Use of these four documents can greatly reduce the chance you will need a Guardian appointed to manage your affairs. All persons, regardless of how many or few assets they have, need all four legal documents. I have had seen cases which required a guardianship even when the person had virtually nothing. Don’t think these documents are just for people who have lots of assets. Everybody, regardless of their assets, may one day be unable to make their own healthcare decisions and then “Who is in charge?” If you have these documents in place this will allow your spouse or child to make these decisions. Without these documents your spouse or child may be going to court to be appointed your legal guardian. This will be very time consuming and expensive for you and your family.

Many times a doctor or nursing home personnel will say you need to get a Guardianship over your Mom. What they are really saying is that “ medically speaking” your Mom is medically incompetent and unable to take care of herself or make rational and meaningful decisions regarding her financial affairs and healthcare decisions. But from a legal standpoint Mom may or may not really need a Guardianship.

The first legal question is “Why does Mom need a Guardianship?” In other words what are you as the spouse or child trying to do that you cannot get done. For example, if Mom cannot pay her bills, withdraw money out of her IRA or transact her daily financial affairs which must be done, you as the spouse or child could get a Guardianship over Mom and do those things for her. If Mom had a Durable Financial Power of Attorney you could, as her “Agent” pay her bills or transact her daily financial affairs without the need of a Guardianship. At this time a Revocable Living Trust could be a real life saver as well. If all of Mom’s assets were in the Revocable Living Trust then you acting as the “Successor Trustee” could pay Mom’s bills and transact her daily financial affairs without the need of a Guardianship.

If you need to talk to Mom’s doctors and nurses to determine whether Mom can stay at home or should she be placed in an Assisted Living Facility or Nursing Home Facility you can do so if you have a HIPAA Authorization signed by Mom. Without this HIPAA Authorization the Doctors and healthcare personnel may only talk to you after you get Guardianship over Mom. Many times people get a Guardianship over Mom because the Doctor said “you need to get a guardianship”. What the Doctor really meant is “in his medical opinion” Mom is incompetent so you should go ahead and get a Guardianship. What the Doctor should have said is that your Mom is medically incompetent you should go see an Elder Law Attorney to determine if a Guardianship is appropriate at this time. From my point of view (Doctor speaking) I believe you Mom is legally incompetent.

So when do you really need a guardianship? When a Durable Power of Attorney won’t do what you need done. When is that? When Mom refuses to go to the doctor or she refuses to stay in the Hospital or in a Nursing Home. The Hospital and Nursing Home will tell you if Mom wants to go home they have to let her leave, they cannot keep her against her will without a Guardianship. They cannot make Mom stay if you only have a Durable Power of Attorney. Even if Mom cannot live alone and everybody knows this but Mom, the hospital or Nursing Home cannot force her to stay. In this case a temporary guardianship might do. After 90 days a temporary guardianship will expire and if Mom is settled in the Nursing Home by then everything might be ok. However if Mom continues to demand she wants to leave the temporary guardianship would need to be made permanent. There are also many other situations which might require a Guardianship, but consult an Elder Law Attorney before doing so.

Have all your wishes placed in writing and legally executed, specifically get a Will or Trust and Durable Powers of Attorney. If you express your decisions in written legal documents the children will go along and not fight or argue about what “you might have wanted.” Your wishes are in writing for all to read exactly what you wanted done. If you don’t have a Will, Trust or Durable Power of Attorney then the children can only guess what you wanted done and each child will have a different opinion which will create conflict, possibly bitter disputes and sometimes complete destruction of relationships between children. Express your wishes in writing by setting up the proper legal documents to help and keep peace and harmony between your children when you die or become incapacitated.