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Here’s Why You Don’t Want a Guardianship

A power of attorney is a document where you authorize another person to conduct business transactions for you. A health care proxy is a document where you authorize another person to make medical decisions for you. If you do not have a power of attorney and health care proxy, and you become unable to make decisions or communicate those decisions, your loved ones will probably be compelled to have a guardian appointed for you. This article briefly describes guardianship. Hopefully, when you finish reading this article, you will run out to get yourself a power of attorney and health care proxy.

A guardianship can only be created by going to court and obtaining a court order. Hiring a lawyer is not necessary but frequently helpful. The legal proceeding focuses on whether the allegedly incapacitated person (the AIP) can adequately perform the activities of daily living. These include bathing, dressing, grooming, ambulating (i.e., walking), driving, properly taking medications, cooking, eating, cleaning, shopping, paying bills, and properly handling money, investments, and property. Unfortunately, people of all ages can have difficulty with the activities of daily living. Some people are born with developmental disabilities. Later in life, difficulties can arise through illness or injury, or just old age.

Another element is that the AIP does not recognize his or her inabilities, and the consequences of those inabilities. For example, some people may not recognize their inability to distinguish one medicine from another, or to take the appropriate dosage at the appropriate time. Obviously, this inability can have serious consequences for the AIP.

Guardianship is serious and powerful because the guardian has the power to make decisions for the AIP, even if those are contrary to the expressed wishes of the AIP. If a 6-year-old said he wanted to eat ice cream all day every day, would the parent allow that? A guardian has the same kind of power over the incapacitated person.

The law makes a distinction between guardianship of the person and of the property. Guardianship of the person addresses such things as bathing, dressing, grooming, medication, and the like. Guardianship of the property addresses such things as receiving income, paying bills, managing investments, and managing property.

The law says that a guardianship must be imposed in the least restrictive manner necessary to provide the needed care for the AIP. This is another way of saying that the civil rights and independence of the AIP must be preserved to the greatest extent possible. For example, an AIP may be able to dress and groom but can no longer handle money. In this circumstance, a guardianship might be granted for the property but not for the person.

A petition for guardianship may be brought by the AIP, or his or her family members, or the person with whom the AIP resides, or the institution where the AIP resides, such as a nursing home or assisted living facility. The petition must demonstrate in detail how the AIP is unable to perform the activities of daily living and to recognize that inability and its consequences. The petition will also typically nominate the person who is going to be the guardian and possibly a standby guardian. Sometimes, where no one wants to be a guardian, the petition will ask the court to appoint a qualified person. This could be an attorney or not-for-profit in the human services field.

The court will order the petition to be served on family members and the persons with whom the AIP resides. If the AIP is receiving Medicaid or other social services, the county Department of Social Services will also be served and participate. All these people will be eligible to come to court to give their opinion as to the guardianship. Does the AIP need a guardian, and is the nominated guardian an appropriate choice?

The court also typically appoints an attorney to serve as Court Evaluator. This is a neutral party who will interview the AIP and family members and others and report to the court on whether the AIP needs a guardian, and whether the proposed guardian is a suitable choice. The AIP has the right to have his or her own attorney, and if the AIP does not hire an attorney, the court may appoint an attorney. The Court Evaluator and other attorneys have to be paid, and the money will come from the funds of the AIP. The legal fees are subject to court approval.

A few weeks after the petition is served on the family members and others, there is a court hearing. Testimony of witnesses is taken, including the AIP if he or she is capable of understanding and communicating in a meaningful way. If people have appeared to make objections, those objections will be heard, as will the responses. In the vast majority of cases, the judge makes a decision right then and there about whether and how to grant the guardianship.

Once the guardian is appointed, the work is only beginning. The guardian must care for the incapacitated person and his or her property. Guardians are required to undergo training which is done by videos available on the court website. The guardian must prepare a report within 90 days of being appointed and deliver it to a court examiner, often another attorney who monitors income and expenses and the care of the incapacitated person. Reports are then due every year for the duration of the guardianship. When the incapacitated person eventually passes away, a final report is required, and the guardian must account for all the funds received and spent. Guardians frequently hire accountants and attorneys to help. The money for this also comes from the funds of the incapacitated person.

As you can see, guardianship is to be avoided. It is costly and requires a great deal of work. Guardianship can be avoided by simply making a power of attorney and health care proxy while you can. So get to it.

This is not intended to be legal advise.  You should contact your attorney to discuss your specific situation.

This article appeared in the October 7, 2022 edition of the Senior Gazette.


Gary M. Schuster is Partner at the firm and practices business, non-profit,  arts and entertainment law and marijuana licensing.
He can be reached at 845-764-9656 and by email.

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