How do you envision your Guardian angel? Maybe a soft-glowing aura around a heavenly-like creature with outstretched wings to fly in when you are in need of help. This mythical creature might seem like your protector, but what happens when your parent or loved one is unexpectedly incapacitated or ill and unable to make sound and rational decisions? How can you find a guardian angel that will help them in the physical and legal world?
Whether through illness, injury, or other means, anyone can require a guardian to become appointed if they become mentally or physically incapacitated. In such cases, if there is no estate planning in place (or insufficient planning) to keep family or other loved ones out of court, a guardianship, or conservatorship (similar to what existed for Britany Spears) as it is sometimes called, must be established via a court process in the county probate court.
Obtaining guardianship can be a challenging and potentially expensive process. It begins with filing a petition in court for guardianship and requesting the court declare the incapacitated person incompetent. In some cases, these types of filings are made “ex parte”, or in secret, and a guardianship can be established before family or close friends even know what’s happening. In other cases, such a filing can result in a heated dispute between family members and friends, who may claim they’d be better suited for the role. Given this, things can get quite costly very quickly. The costs also pale in comparison to the heated emotions that are usually created too.
The discussion of potential guardianships assumes properly executed estate plan that includes a Durable Power of Attorney and Health Care Power of Attorney has already been put in place. We all know what happens when one assumes something has been taken care of without confirming – we make a fool of ourselves to put it politely. Unfortunately, we don’t want to think about the end-of-life planning but it’s inevitable so it’s better to be prepared than surprised. Furthermore, without proper planning, you are leaving your family at greater risk as well as possible major expenses. The truth is that only 18% of American adults over 55 have a complete estate plan. This means we have some work to do to get ourselves prepared.
Here are some tips in case your parent or a loved one becomes incapacitated.
1. Who will be your Guardian Angel?
Unless specified in a valid legal document, any family member or other interested person can petition for guardianship—even a close friend can do it if they prove they’re best suited for the position. That said, most courts give preference to the ward’s spouse or other close family members. Sometimes, the guardian is required to post a bond, which typically requires good credit and some level of deposit to be held in the event of the guardian’s wrongdoing. This bond requirement can disqualify friends and family, who either don’t have good credit or the resources to post a bond.
If a relative or friend is not willing—or capable—of serving, the court will appoint a professional guardian or public guardian. However, it is important to speak to someone and have them fully understand their responsibility.
2. What’s the Guardian’s Responsibility?
Depending on the extent of the ward’s mental capacity, a court-appointed guardian can be given near complete control over a person’s life and finances. Remember what happened to Britney Spears? What if you need help with someone with special needs? How can you plan for someone’s future that has special needs? You need to take a bit more time to ensure that the person you choose is the right fit for the person that needs assistance.
This is the reason it is crucial to choose someone that you can trust with your parent or loved one’s life, LITERALLY. Some of the most common duties include:
- Paying the ward’s bills
- Determining where they live
- Monitoring their residence and living conditions
- Providing consent for medical treatments
- Deciding how their finances are handled, including how their assets are invested and if any assets should be liquidated
- Managing real estate and other tangible personal property
- Keeping detailed records of all their expenditures and other financial transactions
- Making end-of-life and other palliative-care decisions
- Reporting to the court about the ward’s status at least annually, though it’s typically more often than that.
The extent of duties the guardian is responsible for is up to the court, and the guardian will not be allowed to act in areas the court has not authorized. Moreover, guardians are required to seek the ward’s preferences whenever possible—though ultimately, the decision about what action to take will be in the guardian’s hands.
The court can also divide out responsibilities to multiple parties. For example, one person may oversee the financial decisions, while another handles living arrangements and health-care decisions. Furthermore, the court often requires detailed status reports, such as financial accounting, at regular intervals or whenever important decisions are made, such as the sale of assets.
3. Show Me The Money – Compensation?
Can you get compensated as a legal guardian? YES! Guardians are entitled to a reasonable compensation based on the ward’s financial ability to pay. The appointed guardian is paid directly from the ward’s estate. However, the compensation is subject to court approval prior to payment, so the guardian must carefully account for all of their services, the time spent on tasks on behalf of the ward, and any associated out-of-pocket expenses.
Being a legal guardian is a major responsibility and control over your parent or loved one’s legal and financial affairs. Now, is the time to start planning to ensure that your estate plan is up to date. Our lives are so fluid and busy that it is easy to get wrapped up and forget about planning for important events. Give us a call at 954 (237-4011) or click on the link HERE to schedule a call.