What You Should Know About Guardianship—In Case A Parent or Loved One Becomes Incapacitated
Whether through illness, injury, or other means, anyone can require a guardian if they become mentally incapacitated. In such cases, if there is no estate planning in place (or insufficient planning) to keep family or other loved one’s out of court, a guardianship, or conservatorship as it is sometimes called, must be established via a court process.
Obtaining guardianship can be an extraordinarily challenging and expensive process. It begins with filing a petition in court for guardianship and requesting the court declare the person incapacitated. In some cases, such a filing can result in a heated dispute between family members and/or friends, who may claim they’d be better suited for the role. Given this, things can get quite costly very quickly.
Of course, this assumes these matters haven’t already been decided through proper and up-to-date estate planning, including a valid durable power of attorney and advance health care directives, which are the best methods for ensuring this massive responsibility is handled as effectively as possible. Sadly, most people don’t think of the costly possibility of incapacity and therefore inadvertently leave their families at risk.
If you do have a loved one who needs a guardian, here are some of the things you’ll need to know:
Who can be appointed as guardian?
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. In some cases, the guardian is required to post a bond, which typically requires good credit. This bond requirement often disqualifies friends and family, who either don’t have good credit, have filed a bankruptcy, have a criminal record or don’t have 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. This is one of the ways that an estate can be drained extremely quickly.
When are guardians appointed?
In New York, a guardian will only be appointed if a court determines by clear and convincing evidence that the person has functional limitations that impair their ability to provide for their personal needs and/or property management and that they lack the insight and judgment to appreciate those limitations, such that they are likely to suffer harm absent the appointment of a guardian.
What are a guardian’s responsibilities?
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. 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 and doing a complete accounting at least annually
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. What’s more, 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. Due to the nature of these proceedings and depending on whether they are contested, the legal costs alone can be in the tens of thousands of dollars.
Are guardians compensated?
Yes, guardians are entitled to reasonable compensation for their services based on the ward’s financial ability to pay. The appointed guardian is paid directly from the ward’s estate. In most cases, the compensation must be approved by the court ahead of time, and 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.
Given the huge level of responsibility and loss of control that comes with guardianship, the best course of action would be to get proper and updated estate planning in place ahead of time to ensure that if you or anyone you love becomes incapacitated, you can stay out of the court process altogether if possible.
Contact us as your neighborhood Personal Family Lawyer® to schedule a Family Wealth Planning Session—first for yourself—and then for the people you love before something happens to make it too late to plan. If it’s already too late and you’re reading this article because you need assistance petitioning a court for guardianship, contact us now to mitigate the risks, hassles, and expense.
This article is a service of Lori R. Somekh, Personal Family Lawyer®. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, ™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.
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