ISSUE #24
Guardianship

If you become mentally impaired and unable to manage your own affairs, you may end up in involuntary guardianship. Court-ordered guardianship is often an unintended outcome when someone fails to plan for his or her possible mental incapacity. While formal guardianship deals with the problem of incapacity, it can be both costly and cumbersome. Below is a thoughtful review of the process, should you not have adequate legal safeguards put in place prior to becoming disabled. You may also want to review Newsletter #15: http://www.ashland.edu/estate/newsletters/Newsletter-Issue15.htm for additional information how to avoid guardianship issues. Here are some important points to keep in mind:

1. Guardianship is the result of a legal process through which a court first determines that you are mentally incompetent and then names a guardian to manage your affairs. This legal process begins when a petition to determine incapacity is filed. That petition is usually filed by family members, but it can be filed by any adult. Keep in mind that guardianship is governed by state laws, so make sure you consult with your attorney about procedures in your state.

2. Determining Incapacity -- Once the petition is received, the court appoints an examining committee of medical experts. Each member of the committee will evaluate you and then report his or her findings to the court. If you do not have an attorney to represent you during these proceedings, the court will appoint one for you. When and if you are determined to be incapacitated, the court will appoint a legal guardian for you. When you are subject to guardianship, you are called a ward of the court.

3. Appointment of a Guardian -- In many cases, the guardian is a family member, provided one is willing to serve. Otherwise, the court may appoint a professional guardian or a trust company to serve as your guardian. A guardian that is given responsibility over both your personal affairs and your property is known as a plenary guardian. In some cases, these duties are split, and you may have a guardian of the person and/or a guardian of the property, depending on your needs.

4. Court Supervision -- All activities of your guardian are supervised by the court. Your guardian must develop an annual guardianship plan and get it approved by the court. Your guardian is also required to be bonded, make periodic reports to the court and get court permission for non-routine expenditures. Guardians generally must attend a training program and may be removed by the court if they fail to properly carry out the required responsibilities and duties.

5. Costs of Guardianship -- As you might imagine, a process that involves the courts, lawyers and experts can cost a significant amount of money. In fact, guardianships have initial fees as well as continuing legal fees and guardian fees, which can cause a continuous financial drain on your assets. As unfair as it may seem, you have to pay for your own involuntary guardianship.

6. Risks of Guardianship -- There are some real risks associated with guardianship. Your guardian is chosen by the court, and that guardian may not be the person you would have selected. In fact, it may be someone you definitely would not want managing your affairs. Your guardian has full control over all aspects of your life, including where you live and what type of services you will receive. Although most guardians are ethical and capable, an unscrupulous guardian may find ways to divert funds from your estate while neglecting your welfare. Once this happens, it may be difficult for the court to detect the problem.

7. Alternatives to Guardianship -- With proper estate planning, your attorney can put legal safeguards in place so that you will most likely never need involuntary guardianship. With a properly drafted living trust, a health care surrogate designation and a durable power of attorney, you can make arrangements in advance for a trusted family member to handle your affairs, if needed. This allows you, not the court, to select the person who will manage your affairs. It also avoids the stigma of having your rights removed by the court. The cost of proper planning is only a small fraction of the cost of guardianship.

8. Obtain Professional Guidance -- If you do think you may need a guardian some day, your attorney can draft a pre-need guardian declaration, in which you name the person you prefer as your guardian. While the court is not required to accept that person, it must consider your wishes. Some states and non-profit organizations offer public guardianship services for people who cannot afford professional guardians. Make sure you work with a qualified attorney to plan for your possible mental incapacity before you become incapacitated.

This publication has been prepared as an educational resource to help the reader identify areas of potential concern. The publisher is not engaged in rendering legal, accounting or other professional services. The information contained in this publication should not be acted upon without first obtaining the advice of a professional adviser. 2004 © Florida Philanthropic Advisors, LLC. Material may not be used without permission.

You may wish to access NEW information this month at: www.ashland.edu/estate and “click” on “Planned Giving” in the left hand column.

Our planned giving director, Paul Ditlevson, can be of tremendous service in helping you integrate your giving goals with your overall estate plan. He can also help you prepare to visit your attorney. You can reach Mr. Ditlevson by calling 419-289-5090 or by email to pditlevs@ashland.edu or regular mail at 401 College Avenue, Ashland, OH 44805.