What Is Guardianship As it Relates To Estate Planning Law?
The best way to describe guardianship under estate planning law is that it’s what is needed when things go wrong in reference to an estate plan. A guardianship is essentially a probate court proceeding, but during the person’s lifetime. The person may or may not have signed estate documents during their lifetime. A guardianship is a court supervised proceeding where a person is typically deemed incapacitated in one way or another and unable to exercise certain powers and abilities such as caring for oneself or managing one’s finances. Those powers would then be delegated to some other person and that person is called a guardian. The guardian may manage the personal and financial affairs of the incapacitated person and must report to the court and to all beneficiaries for things such as living and care arrangements, medical treatment, financial management, buying and selling of major assets and many other responsibilities.
What Responsibilities Or Duties Does A Guardian Generally Have?
Once appointed as guardian, responsibilities or duties all depend on the court’s guardianship order determining incapacity and letters of guardianship that limit or broaden powers for the named guardian to control. There are several distinctions between guardian powers or types. We can have, first, a plenary or limited guardianship; second, a guardian of the person or guardian of the property or guardian of person and property; third the delineation of powers and responsibilities can be in the form of a co-guardian or a sole guardian.
Turning first to the plenary and limited guardianship, this distinction typically refers to the scope of the guardian’s powers. Simply put, plenary guardianship means that the guardian can do anything possible on behalf of his or her ward; the ward being the person who is incapacitated. The guardianship court order would state that the ward has the inability due to incapacity to manage all financial and medical affairs, and those powers are given to the guardian. It means that the ward’s actions, such as to sign a check or to sell property, would be rendered meaningless and ineffective. Only the court appointed guardian can do that action for that person. The term plenary means all possible rights of the ward are delegated to the guardian. However, not all wards are determined to be completely incapacitated. This results in a limited guardianship. The court’s incapacity determination is tailored to only certain aspects of someone’s decision making abilities. Under the guardianship initiation process, appointed medical examiners, after meeting with the ward and submitting their report to the court, could determine that somebody has the mental capacity to decide where to live but the person may not have the mental capacity to manage their finances. In that case, the judge could limit the scope to a limited guardianship and not do a plenary where the guardianship is only limited to managing the ward’s financial affairs.
The second delineation of guardianship types is guardian of the person versus guardian of the property versus both. When the judge signs a guardianship order appointing a guardian and letters of guardianship, the judge has the ability to name one person as guardian over medical decisions, or guardianship of the person, and the judge can name a different individual to manage all financial transactions of the ward, or guardianship of the property. The court may also name the same individual to act as both the guardian of the person and property of the ward. In some cases where certain family members may have different skill sets in managing finances versus making medical decisions, and the family requests the court to appoint different people for each job, then this may be a good situation for co-guardians. There are different reporting requirements for each type of guardianship. There will also be different limited responsibilities depending on the type of guardianship role the guardian is limited to, responsibilities being limited to just the medical and personal decisions for the ward as guardian of the person versus money management related responsibilities to the ward as the for guardian of the property.
Sometimes the judge will split up those responsibilities depending on whether there are high levels of family contention on certain issues relating to money but not so much relating to medical. The judge may delegate guardianship authority to a professional guardian over certain issues versus others.
The last delineation of authority is whether or not a court will name co-guardians versus a sole person to be responsible as a guardian. With co-guardianship powers, the court appoints two or more people to act with authority as guardians over the incapacitated ward rather than just one person. Typically, courts do not favor this arrangement due to issues or difficulties with communication between the co-guardians. However, that option is there as opposed to just naming one person if the situation calls for this scenario. (ghgossip.com) If two people work together well, then a court may be open to naming co-guardians.
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