Guardianship is a probate court proceeding (sometimes called living probate) in which a mentally disabled person is sued to take away his right to manage his assets and personal care. Those rights are then transferred to a person or financial institution appointed by the probate court to manage the mentally disabled person's ("ward's") finances and personal care. After the guardian takes over the ward's financial responsibilities, the court must then supervise the guardian's actions. Guardianship can be one of the most humiliating, expensive and time consuming legal matters.
First, the court must appoint an independent attorney to represent the disabled person. The fees of the attorney are paid by the disabled person. Therefore, the family ends up paying two attorneys who may be arguing against each other. Second, the person designated by the court to manage the ward's assets (the guardian) must report to the judge about all financial dealings made on the ward's behalf. All income and expenses must be reported, down to the penny. The two attorneys and court auditor then review the income and expenses at least annually. The law requires this in order to insure that the ward's interests are protected. Without adequate estate planning, the chances of having a guardian appointed on your behalf are high.
How a Guardianship functions
The guardian takes control of all of the assets and income of the ward. The ward cannot sell his or her own assets or determine how his or her money will be invested without the consent of the guardian. Whether the protected person has any spending money is the guardian's decision.
Probate courts do not casually appoint guardians. The alleged disabled person must be given notice of a petition asking the court to act, must be present at a hearing on the petition, has the right to present and cross-examine witnesses and receives a court-appointed attorney. There is a right to have accountings and reports from guardians and a right to have the court periodically review the need for continuation of the guardianship.
Proper use of a Guardianship can be Beneficial
Guardianship, when properly used, may be a good way to provide continuing management to persons who need such help. The continuing involvement of the court can provide added protection to everyone involved.
Anyone can bring about a guardianship suit. If someone has filed a petition asking for the appointment of a guardian for you, you should contact an attorney (if you do not want the court-appointed attorney). This attorney can advise you as to the procedures that are involved and the choices available to you. You will have to decide whether to oppose the petition, propose alternative solutions or oppose the appointment of the particular person in favor of one of your choice.
What to do if a Family Member Needs a Guardian
If a family member needs to have a guardian appointed, you should contact an attorney who is familiar with this area of the law so that the necessary pleadings can be filed with the appropriate court and the correct procedures can be followed. The attorney can also advise you of various planning alternatives to guardianship that may be available. Such choices may include a Durable Power of Attorney, a trust or other options.
Protect your Assets
Legal care for the elderly is one of the fastest growing areas of the law. Those over age 80 account for a greater proportion of the American population every year. According to the U.S. Bureau of the Census, in 2010 there were more than 1.9 million Americans age 90 years or older, up from 1.4 million in 2000. With our population aging, it is likely that more and more Americans will be subject to guardianship.
In addition to the lack of protection from probate and federal estate tax, the "simple will" does not offer protection from guardianship either. The simple will, or any will for that matter, offers absolutely no protection from the legal proceedings arising out of disability.