When a person can no longer make financial or health decisions, a guardian may be appointed to fulfill these duties—but this position comes with great responsibility.
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Often times, a person is appointed guardian to decide on financial and personal matters for someone who is unable to make such decisions—whether it’s old age or a disability. A family member or person of interest can petition the court to be named the guardian.
“You don’t plan to have a guardian,” says Randy Kessler, founding partner of Kessler & Solomiany.
“Depending on the terms of the guardian order—it’s like a power of attorney—the broadest would be every decision including medical decisions but the more common ones are financial,” says Kessler. In some states, “conservatorships” refer to having the authority to make financial decisions for a person, while the term “guardianship” generally refers to both financial and medical decisions.
“If someone’s in mental duress, a civil court could appoint a guardian when there’s financial decisions involved,” says Kessler. It’s a guardian’s job to make the best decisions on behalf of the other person, also called the ward.
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If you’re seeking a guardianship over someone, experts suggest considering the time commitment. “It’s literally almost a tethering of the guardian to the ward,” says Robert Meyring, family law and estate planning attorney in Atlanta. “They take on handling everything and reporting back to the courts to the extent required.”
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Before looking to take on this responsibility, experts provide the following information and tips to help maneuver through the process:
What’s the guardianship process?
Guardianships are a court-appointed process that can take four to eight weeks and can get ugly. And even though guardians are paid, the costs to establish the guardianship and time commitment can be high.
“It is a huge difference in cost with [estate] planning versus if you didn’t plan and [a guardianship] was imposed upon you later on,” says Randy Michel, family law and estate planning attorney in College Station, Texas. “The difference can be a few hundred dollars [for an estate plan] versus tens of thousands of dollars [for a guardianship], easy.” If a guardianship is contested, the costs can spiral out of control.
“If you’re appointed guardian, you can use the person’s money to pay legal fees,” says Michel. “If you lose, you’re going to pay out of your own pocket.”
Having an estate plan can take care of any situation that may occur prior to death. “In more than 50% of the time, someone will suffer incapacity before they pass away,” says Meyring.
How are Wards Protected?
The person you are seeking guardianship over will be made aware of your intentions.
“The person who wants to become a guardian needs to understand the person will be served with papers that they’re incapacitated and they may be mad about that,” says Michel. This safeguard protects people from losing control over their lives if they are still competent to handle their health and financial decisions.
“In certain states, if you owe this person money, you’re not qualified to be guardian,” he adds.
A psychologist typically reports on the person’s mental health to decide if a guardian is needed. “The person can give testimony in court in opposition to the guardianship. If they have a very lucid moment, it could complicate matters,” says Michel.
The court appoints an attorney to represent the person in question’s best interest, whether the guardianship has merit and the fitness of both people. “It’s really the lawyer’s duty to make sure that the person seeking the guardianship follows the law,” says Michel.
What Happens after Court?
The court asks for several areas of reporting throughout a guardianship, including an inventory of the assets, any financial decisions you’ve made and what you’ve spent on behalf of ward.
“[The court] generally needs that at the beginning and checks up every few years,” says Meyring. “If everything goes fine, they may stop asking for this information.” The court’s job is to help establish the guardianship and they’ll monitor the set up and establishment of the guardianship— they don’t want to police it.
“The check and balance is that if somebody can petition the court to find out what happened,” says Meyring. This would usually be a relative or a financial planner in conjunction with a family member who’s concerned that the ward’s money may not be spent properly.
What are You Personally Liable for?
Depending on the ward’s assets, the guardian will also be required to post a bond equal to the value of the estate, says Michel.
“Suppose the person in need of the guardianship has an estate of $500,000 excluding real estate, you’ll have to post a bond equal to the liquid assets to insure you’re going to do what you’re supposed to do. The judge can increase or decrease the bond in certain circumstances.”