As the family member or loved one of an adult who seems unable to care for himself, it is often difficult to know when to step in. For this reason, the courts have developed guardianship proceedings that establish, from a legal perspective, when a person is in need of a guardian. State laws will vary to a certain degree, but in most cases a guardian is appointed when a person, known as the ward, is determined to be incapacitated. If you are appointed as the guardian, you will typically be able to make personal decisions for the ward, such as where she will live or what doctor will treat her. Financial decisions are generally not within the control of a guardian but are made by a conservator if one has been appointed. Often, you may be appointed as both a conservator and guardian. Only a court can determine if someone needs a guardian, but the following are common reasons that a Fayette County attorney recommends you petition for a court determination:

• Your loved one is low functioning or mentally challenged to the point that she cannot make decisions for herself
• She has a mental illness that impairs her ability to make basic decisions
• She is unable to make medical decisions or fails to follow through with medical treatment
• She has a physical condition that impairs her ability to care for herself
• She is homeless or at risk for being homeless as a result of her inability to care for herself
• She has a drug or alcohol addiction that impairs her ability to make decisions

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

Most people are well acquainted with the concept of an orphaned child being protected by a guardian and/or a conservator until he or she becomes of age. But are you aware of what would happen if an adult was to become mentally or physically incapacitated and require supervision?

The matter of whether a sick parent, a senior citizen or even a young adult requires a guardian and/or a conservator to manage his or her personal and/or financial affairs is usually an emotional one that needs to be handled with care. Usually, a parent does not want to give up his or her autonomy, though in the end it may be for the best.

For instance, if an aging parent has Alzheimer’s disease, it can leave him or her with the false sense that he or she can still manage things effectively. In cases like these the children may be doing the elder a service by petitioning the court to appoint a guardian.

Conversely, some adult children want to rush things along when their parent slows down a bit due to old age. Sad to say, there are cases when adult children are motivated to rush to judgment with regard to a parent’s supposed incapacity due to greed.

However, if the proper incapacity planning strategy is carried out by the parents with the assistance of a Stockbridge qualified estate planning attorney, there should be no need for a guardianship proceeding. You can simply execute a durable power of attorney for health care matters, and another one for financial matters, naming different respective attorneys-in-fact if you so choose. In this manner, decision makers of your own choosing will be in place in the event of your incapacitation.

To learn more about guardianship and conservatorship and how it can be avoided, consult with a licensed, experienced Henry County estate planning attorney.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

If you or a loved one becomes mentally incapacitated without a mental disability plan in place you will most likely face a court-supervised guardianship. The process of establishing a guardianship includes determining your incapacity and appointing a loved one to monitor your needs and financial affairs. Because a guardianship is a long term arrangement, there are quite a few fees involved.

The petitioner’s attorney fees will include the filing of the petition, representation throughout the process to determine incapacity and continued counsel for the duration of the guardianship.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

If your children are minors, you should consider creating a guardian plan. A guardian plan allows you to state the person you prefer your children to live with in the event that you and your spouse pass away.

List Options

The first step of your guardian plan is considering your options. You and your spouse should list every family member and every friend of the family that is a possible guardian. Don’t exclude anyone until you have completed your list.

List Your Desires

Next, you and your spouse should make a list of all of the features you desire the caregiver to have. Do you prefer for the caregiver to practice a certain religion or to be married instead of single? As you enumerate your wishes, rank which are most important to you. This will help you during the process of narrowing down your list of prospective candidates.

Narrow Your Options

Once you have decided what attributes of a caregiver are most important, you can begin to narrow down your list of possibilities. Get rid of the most obvious non-candidates first, but take your time when your list reaches five to seven people. Your final list should contain two to three names. Having one or two back-ups is important in case your first choice should become unavailable.

Speak with Your Family

Once you have chosen a guardian and a back-up guardian you should speak with these individuals to confirm their feelings on the choice. This gives them the opportunity to advise you if they are not up to the task or if they have obligations that would keep them from taking the position. If your guardian choice is unavailable, you can move to your back-up and reevaluate your list.

During this time you should also speak with your children and possibly other family members to explain your decision and get their input.

Create Your Plan

Once you have your guardian choice firmly in mind, you can put it into writing. Whether you use a Last Will and Testament or a Revocable Living Trust to name your guardian, the most important fact is that you do so to ensure your children’s safety and happiness.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

Since a minor does not have the legal right to take control and manage the property he or she inherits, the courts appoint a guardian or conservator to do so. The choice of a guardian is made with the needs and requirements of the ward (the minor) in mind. The courts examine the financial condition, health, judgment, morals and character of the person who requires guardianship.

Once appointed, a guardian is expected to fulfill various duties and responsibilities to meet the needs of his or her minor ward.

• A guardian must take inventory of all the assets of the ward, determine their value and file a list of their estimated value with the court.
• A guardian’s position is based on trust and they are legally obligated to protect the interests of the ward in the same manner they would protect their own.
• A guardian has the authority to make decisions regarding the management of all assets owned by the minor.
• A guardian cannot invest the ward’s money in speculative ventures or neglect any duties related to the maintenance of land, crops or buildings that are part of the ward’s estate.
• A guardian has to ensure the timely payment of all bills, taxes and other payments relative to the management of the minor’s estate.
• A guardian cannot allow someone else to maintain or manage the business of the minor without direct supervision on the part of the guardian.
• A guardian has the legal right to hold or sell the property of the minor but not use the proceeds for the guardian’s personal benefit.
• A guardian is prohibited from making gifts from the ward’s estate and is required to keep his or her own money and the ward’s money separate.
• The guardian needs to pay for the health, education and other maintenance expenses of the minor.
• The guardian can make a decision regarding where the minor will live but must receive court approval.
• The guardian may require the court’s permission for carrying out certain duties, depending on individual state laws and guidelines.
• The guardian must present to the court on an annual basis details of assets of the minor, along with additions or subtractions from those assets.

Once the minor reaches adulthood, the guardian must make a final accounting of the minor’s assets and seek termination of guardianship.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.