Guardianship Caregiving - Trust and Estate Planning Law Office

Guardianship is a court arrangement where a judge appoints someone to assist in managing an individual’s healthcare and financial affairs when the individual is no longer able to do so on their own. Guardianship is divided into two categories that deal with different aspects of the individual's needs. The first category allows the guardian to oversee the ward’s daily care, Guardianship of the Person. The second category grants the guardian power to oversee the ward’s personal and home property, Guardianship of the Property. Usually, people who require guardians are individuals who may have neglected to engage in advance estate and care planning.

The guardian could be a family member or the court could appoint an independent person. The court then supervises the guardian after they have been appointed. Guardianship appointments can be time-consuming and costly with prolonged legal fees. However, the good news is that guardianship is preventable. There are a few alternatives to guardianship that you can explore with early and proper planning. The following are potential alternatives to guardianship that should be widely considered.

Obtaining a Representative Payee as Alternative to Guardianship of the Property

If someone receives government benefits like Social Security, but they cannot manage the money on their own, the Social Security Administration can grant an individual to be appointed to receive the funds on behalf of the incapacitated individual. Social Security designates this person as a representative payee. The payee is required to use the funds to pay for the individual’s expenses and report the expenses to the agency. The payee must give an account to Social Security for how the money was spent. If you believe this is necessary for you and your family or loved one, you can do this by contacting Social Security and completing an interview. After completing the interview, you may be approved and be appointed a representative payee. Becoming a representative payee may avoid the need for a Guardian of the Property.

Obtaining Durable Powers of Attorney as An Alternative to Guardianship of the Property

A Power of Attorney (POA) is a legal document used to plan ahead of time. A POA allows one person (called the principal) to appoint one or more other people (called agents) the right to make health and/or financial decisions for them. Elders usually appoint an adult child as their agent as their mental and/or physical health deteriorates. In order to appoint an agent, the principal must have the capacity, at the time they choose who they want to act as their agent and when they sign the document. A POA is significantly less expensive and less time-consuming than a guardianship hearing. Having a Power of Attorney in place could prevent the need for a Guardian of the Property to be appointed.

Acquiring a Health Care Proxy as An Alternative to Guardianship of the Person

Similar to a Power of Attorney, a Health Care Proxy (HCP) is a document used to plan early. An HCP allows for an individual, with capacity, to appoint another person that they trust to make healthcare decisions for them. The principal will choose one person who can serve as their agent. An HCP, along with any other medical directives, will allow the principal to state their health care wishes early on. Although the HCP can be signed at any time, the HCP is only effective after two doctors decide that the principal is not able to make decisions on their own. Having a health care proxy in place could obviate the need for a Guardian of the Person.

Trusts And Estate Planning as An Alternative to Guardianship of the Property

A third alternative to guardianship is to execute a trust. A trust is a legal contract between three parties – the grantor, the trustee, and the beneficiary. A trust can serve as a means for property management. Having a trust can sometimes avoid having a Guardian of the Property because the trustee can effectively manage your property, instead of a guardian.

For disabled individuals or individuals planning for disability, you can create a First Party Supplemental Needs Trust or a Third Party Supplemental Needs Trust. These types of Trusts allow you to protect your assets while still being eligible for certain government benefits. Certain supplemental needs trust may need the court’s approval before being established. Each of these trusts has nuances that should be discussed with an estate planning or elder law attorney.

Joint Checking Accounts as An Alternative to Guardianship of the Property

A fourth alternative to guardianship and property management is by setting up and maintaining a joint account with another person. You can also add a person to the account for convenience sake only. By adding another person to the account, it will allow the other person to pay the bills and be an alternative to a guardian of the property.

Assistance with Care Management As Alternatives to Guardianship

If someone requires limited assistance, they may be able to use a case management tool instead of a guardian. They would create a plan that would allow others to assist and support the individual with the specific needs they may have while also allowing the individual to function independently in the areas they are able to. For instance, Adult Protective Services (APS) can provide case management without the need for a guardian. APS would appoint a case manager who can provide assistance with different needs like obtaining and recertifying for Medicaid, assuring proper living arrangements, monitoring safety, managing financials like social security benefits, and providing heavy-duty cleaning services.

How can an elder law or guardianship attorney help?

Guardianship is an expensive and, at times, cumbersome and complicated process. It is very possible to avoid guardianship by using any of the above ideas or resources. We can help you avoid guardianship. If unavoidable, we can also help you petition for guardianship. To learn more about the legal process of seeking guardianship it’s best to consult a lawyer.

For further elder care information, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to receive the most highly qualified legal advice.

When an older adult is not able to think clearly, their capability to make informed and meaningful decisions will be affected. The onset of Alzheimer’s disease or other related dementias, stroke, brain injury, mental illness, or other serious issues can be the cause. If the person you are caring for is not able to make rational, sound-minded decisions about their health care, finances, or other aspects of life, seeking legal guardianship might be necessary for their safety and quality of life.

What Is Guardianship for Elderly Individuals?

Guardianship is a legal option in the event that an adult has not appointed a healthcare proxy or power of attorney (POA) and they are not capable of doing so anymore because of advancing age, illness, or disability. Even if they named a POA, guardianship might still be necessary especially if their POA is not durable, meaning it ends when they are incapacitated. The most common scenario is when family caregivers seek guardianship for adults with dementia and they have not made legal preparations for the future.

The definition for the term, guardianship, varies between states. In some states, guardianship gives the appointed person control over where the incapacitated individual lives, what health care they can receive, and how their daily needs are met. On the other hand, conservatorship allows the appointed person to handle the incapacitated individual’s financial decisions, such as paying bills, managing investments, and budgeting. These terms are often used interchangeably.

In order to act as someone’s legal guardian or conservator, the person petitioning for guardianship must go to court and have the incapacitated individual declared as incompetent based on an expert’s findings. If the incapacitated individual is legally ruled as incompetent and the petitioner is a fit candidate to serve as a guardian, then the court transfers the responsibility for managing finances, living arrangements, medical decisions, or any combination of these to the petitioner.

The entire process often takes a decent amount of time and money. Family members can disagree about if guardianship is necessary or who should be assigned as a guardian. It can be painful, prolonged, and costly.

What Is a Court-Appointed Guardian?

A court-appointed guardian (or conservator) has court-ordered authority to handle an incapacitated individual’s affairs. They have a fiduciary duty to act in the best interests of the individual they are appointed to serve. Unfortunately, it strips the incapacitated individual of many rights. However, it may be the only way to obtain the legal authority to make important decisions on their behalf.

Who Can Be a Legal Guardian?

The court will hold a hearing to decide if the person seeking guardianship is fit for the role. Their relationship, criminal background, credit history, and any potential conflicts of interest are factors that go into the court’s decision.

In the case where more than one person is petitioning for responsibility for the incapacitated individual’s needs, the court will determine who is best qualified. Sometimes one person is appointed to handle the medical decisions (aka guardianship of the person) while another is appointed to manage financial matters (aka guardianship of the property). The incapacitated individual’s preferences and previously prepared legal documents (ex: Non-durable POA, a will, or advance directive) are factors for this decision.

Most states can give preference to the incapacitated individual’s spouse, adult children, or other family members because they are most familiar with the individual’s unique needs and abilities. If a loved one is not willing or not qualified to serve as a guardian then a professional guardian or public guardian might be appointed.

When Is a Guardian Appointed?

A guardian or conservator can only be assigned if a court hears evidence that an incapacitated individual lacks mental capacity in some or all areas of their life. The court also determines that the individual can no longer make informed decisions for themselves. Allegedly incapacitated individuals (not deemed incapacitated) have the right to an attorney and the right to object to the appointment of their guardian or conservator.

In rare cases, if an elder’s health and/or finances are in jeopardy, emergency guardianship may be granted right away. Be warned, guardianship is a very serious intervention and should only be considered as a last resort.

A Guardian’s Role:

Whenever possible, the guardian or conservator must find the opinion of the incapacitated individual and can only act in areas authorized by the court. After a thorough investigation, the court can rule if guardians can be given limited or broad authority. Sometimes the court delegates responsibilities to several parties. In general, the court needs to see reports and financial accounting at regular intervals or whenever important decisions are made. For some large decisions, prior court approval can be required.

Do Guardians Receive Compensation?

All court-appointed guardians are entitled to reasonable compensation for their services. When a family guardian (a spouse, family member, or friend) is appointed, they usually do not charge the incapacitated individual for their services. If a private guardian is appointed, they are paid directly from the incapacitated individual’s estate if they can afford to. If compensation is provided, the compensation amount must be approved by the court, and the guardian must carefully account for all their services, the time their tasks require, and any associated out-of-pocket costs. Public guardians are appointed to incapacitated individuals who do not have family or friends to be their guardians or the resources to hire a professional guardian. They are funded by public money, like government funds and charitable contributions.

Hire an Elder Care Attorney.

To learn more about the legal process of seeking guardianship or conservatorship in your state, it’s best to consult a lawyer.

For further elder care information, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to receive the most highly qualified legal advice.

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