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AREAS OF PRACTICE

Guardianship

A guardianship is a legal proceeding where the court appoints a guardian to oversee the care and finances of an incapacitated person. A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability. Guardianship for an elder person is an absolute last resort. Proper pre-incapacity planning can prevent the need for this court supervised “living probate.” Guardianships are very expensive and emotionally draining for a family.

Elderly family members often suffer from dementia or some other illness that may render them ultimately incapable of making decisions for themselves (incapacitated). If the elder is incapacitated and does not have a health care surrogate, durable power of attorney, and living will, a court proceeding to appoint a guardian for the ward is necessary. Guardianship proceedings are complicated, time consuming, emotionally difficult, and expensive. Avoiding guardianship should be of primary concern for anyone who is the potential decision maker of an elder.

Guardianship proceedings require a panel of three medical professionals to interview and assess the capacity of the ward. An attorney is appointed to represent the interests of the ward. The ward is responsible for paying for all of these professionals. A hearing in court is held to determine if there is an incapacity and, if so, the level of incapacity. The court will then determine what aspects of the ward’s life the ward can control and which aspects will be turned over to the guardian. If there is a contest as to either the incapacity of the ward or who should be guardian, additional hearings in court will be held.

After a guardianship has been established, none of the ward’s assets can be used without court permission. Further, duties of the guardian include compiling initial and annual accountings, inventories, and plans for the wards care.

Guardianship generally lasts for the life of the ward. Understanding the difficult nature of the guardianship proceeding is usually the motivation for my clients to preplan by doing advance directives. Although guardianship is sometimes necessary, we should do all we can to avoid this proceeding.

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