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A Legal Introduction to Guardianship for an Incapacitated Individual

The Huffington Post The Huffington Post 12/10/2015 Brad Reid

A guardian may be appointed by a court for an incapacitated individual as defined and procedurally mandated by state statute. A typical statutory definition of "incapacitated person" is one who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs. Unlike a power of attorney voluntarily created by an individual, a guardianship may be involuntarily imposed by a court. This comment provides a brief and incomplete educational view of incapacity guardianship. Issues surrounding minor children are not addressed in this brief comment. Consult experienced medical, legal, and financial professionals in specific situations.
There are numerous tragic circumstances in which the appointment of a guardian may be necessary. There are individuals who are unable or unwilling to recognize their loss of capacity or may be being exploited by hangers-on. There are physically or mentally incapacitated individuals who simply want to stay in their lifetime home and pretend that nothing has changed. There are those whose mental or physical incapacity exists from birth, and those who receive permanent incapacity due to an accident, such as a closed head injury. There are individuals whose dementia makes them prone to confusion and aimlessly wandering. These are just a few of the many difficult circumstances in which a guardianship may be necessary.
In contrast, a more legally difficult group to classify involves so-called non-conforming "free-spirits," drug abusers, alcoholics, drifters, the chronically homeless, and those who, due to emotional problems short of outright incapacity, have become involved in kleptomania or perhaps arson. This group may or may not qualify for a guardianship as a presumption of competence and society's expectations of far-reaching personal freedom and criminal responsibility take priority in many situations.

It is critical that all statutory procedures be precisely followed in order to create a valid guardianship. Frequently a concerned family member will contact an attorney who files a guardianship petition with the appropriate court. Notice to the proposed ward (the individual subject to the guardianship) of the guardianship hearing is like that of any lawsuit. Additionally, there may be required posting of the notice at a specified courthouse location, and required notices to a spouse or other interested parties. Do not shortcut notice requirements or utilize an unauthorized process server. Improper notice may invalidate subsequent court orders.
In situations involving potential imminent harm, an emergency protective order and/or temporary involuntary hospitalization commitment order may be issued by a judge. Typically a state agency must be notified and become involved, particularly when abuse or neglect is suspected. In virtually all situations medical and/or psychological examinations are required prior to professional testimony in open court.
The proposed ward has an opportunity to be heard in open court and be represented by legal counsel. Typically the appointment of an "attorney ad litem," providing legal representation to the proposed ward, is mandatory. The appointment of a "guardian ad litem," a personal representative for the proposed ward, is frequently discretionary but often occurs. A judge has broad discretion in issuing orders based upon the evidence presented in court. Jury trials may also be possible or a mediated settlement presented in or outside of court.

Most states have enacted The Uniform Adult Guardianship and Protective Proceedings Act to insure interstate enforcement of guardianship orders and to reduce abuse and involuntary movement of the ward (so called "granny or grandpa snatching") across state lines.

There are statutory lists of individuals who may be appointed as guardians (starting with close relatives) and individuals who are disqualified (such as individuals of bad character or who have claims adverse to the ward). Guardianships may be temporary or permanent and involve only property or both the physical person as well as her or his property. A "least restrictive alternative" standard is the overarching requirement.
Many jurisdictions require that the guardianship order specifically address the ability of the ward to vote and operate a motor vehicle. The following are a few of many possible suggestions that a concerned individual should review with an experienced professional. Guardians should be bonded by a reputable corporate surety (such as an insurance company), even if a statute allows a personal surety. This is simply more secure and reduces potential conflicts of interest. Carefully review the limitations and exclusions of the bond. Request a court order safekeeping or "freezing" bank accounts and related assets. Preexisting survivorship accounts should be kept intact with the simple addition of the guardian's signature to a signature card, pursuant to a court order. This will reduce the possibility of the survivorship heirs asserting fraud.
The fees and expenses of the guardianship are paid from the ward's assets, if any. A careful judge will critically monitor requests for payments and require that all expenses and fees be "reasonable." Requests for payment and annual accountings are to be reviewed by the judge.
Unfortunately, the potential for personal and financial abuse must be addressed. A guardian must have meaningful and frequent personal visits with the ward and speak-up for the ward. Many states mandate that the court establish a Court Visitor Program, in which a neutral volunteer makes an annual visit to an incapacitated person and files a report with the judge. If not required by statute, petition the court to have this independent assessment conducted. Concerned family members and friends must also monitor the physical, emotional, and financial status of the ward. A court must typically make an annual assessment of the need for continuing the guardianship.

The following are examples of the many additional precautions that should be taken. Credit cards should be cancelled, checkbooks accounted for, and door locks changed. Valuable assets such as jewelry, collections, artwork, and antiques should be insured and placed in appropriate secure storage. The guardian should provide appropriate notice of the guardianship to all potential creditors and demand that creditors present any claim within 120 days of receipt of the notice or be barred. Claims should only be paid with court approval. Carefully review and process Social Security related benefits, Veterans Benefits, and pension plans. A guardian should not utilize principal assets ("invade the principal") without court authorization. Detailed record-keeping is essential.
A guardian is a fiduciary (imposing the highest standard of care and honesty). State statutes determine the amount of the guardian's financial compensation. When the ward has assets, five percent of the ward's gross income and additionally possibly five percent of all money paid out is not uncommon. In situations where there are no assets, a state agency's social worker may perform these duties.
A guardian may die or become incapacitated. A judge may immediately appoint an alternative guardian, subject to subsequent review. A guardian may resign and typically must present a final accounting to be reviewed and approved by the court. The surety bond remains intact until the guardian is discharged by a court order. A broad range of individuals may petition the court to remove the guardian for cause. A judge has broad removal discretion.
This comment provides a brief and incomplete educational overview of a complex subject and is not intended to provide legal advice. Always consult experienced legal, medical, psychological, and financial professionals in specific situations.

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