Does My Parent Need a Guardian

When mom starts forgetting to take her medicine, or fails to pay the electric bill for several months – people begin to ask if somebody needs to step in and help.   Guardianship is one method of taking over management of a person’s affairs.   It is not, however, the easiest method, or the least expensive.   It is more like an option of last resort.

A guardian is a person appointed by the court to manage the affairs of a disabled person (or sometimes a minor).  There are two types of guardianship:   Guardian of the person and Guardianship of the estate.  A guardian of the person is appointed to manage the physical health and well being of a person.  A guardian of the estate is appointed to manage the financial affairs of the disabled person (their estate).

A guardian is typically appointed because the disabled person needs help, and has not chosen an agent to act for them through a power of attorney.   A person who has the legal capacity to make decisions can sign a durable power of attorney appointing an agent to make decisions for them, if they should become disabled.  The forms are simple and the process is inexpensive.  The agent is authorized to act without ongoing court supervision.   More importantly, the agent is somebody chosen by the person – and not by the courts.

If the person has not prepared a power of attorney and now lacks decisional capacity, guardianship is the only option.  A person (typically the adult child of the disabled person) files a petition seeking to be appointed as guardian.  That person must submit a doctor’s report  establishing that the person is disabled.  The disabled person has a right to challenge guardianship if they believe that they are not disabled.  Other people can challenge the appointment of a particular person as guardian.  If no challenges are made – the process can be completed in a month or two.   Typically an uncontested guardianship will cost between $2,000 and $4000 up to the point where the guardian is appointed.  If the guardianship becomes contested, the fees can increase substantially.

Once appointed, the guardian must post a bond (in most cases) to ensure adequate protection of the disabled person’s assets.  Thereafter, the guardian can make limited decisions for the person.   For monetary assets, expenditures are usually made pursuant to a budget approved by the court.   Major decisions, such as selling a house or placing the person in a nursing home, require approval from the probate court.  At the end of each year, the guardian must present an accounting of all money spent, and a report about the condition of the disabled person.

The guardian normally has an attorney who handles the preparation of accountings and handles the court appearances.  The guardian is entitled to payment of a modest fee for their time and is reimbursed for out of pocket costs.  These expenses are paid from the assets of the disabled person, and require the approval of the probate court.  Because of the reporting requirements and associated legal fees, there is a cost to maintaining a guardianship each year.

While guardianship is a necessary process for those who need it – it is something to avoid if possible.  It can usually be avoided by preparing a durable power of attorney for health care and property in advance.  If your aging relative seems to be slipping a little – consult a lawyer.  If they still have sufficient cognitive abilities to meet the requirements of legal capacity (which is not a very high standard) – you may still be able to sign powers of attorney.  If not – then look on the bright side – at least now you know something about guardianship.