As estate planning attorneys, we are constantly explaining the benefits of having all legal documents in place as early as possible, and updating such documents periodically as circumstances change. Two of the most important documents to have in place during your lifetime are a financial power of attorney and a health care power of attorney. These documents are easy to establish and, together, they allow you to remain in control of who will handle your affairs if you become unable to do so in the future. Unfortunately, there are some instances where a person simply cannot execute these documents. There are also instances where a person fails to have these documents properly established and then becomes incapacitated, so they can no longer enter into the same. Further, on occasion, such documents become outdated (for example, because the designated agent passes away and no successor is named) and is, therefore, unusable.
If a person is or becomes incapacitated and is unable to handle his or her own affairs, if that person does not have proper financial and health care powers of attorney, often, the only option is for the family to pursue Guardian proceedings. A Guardianship is a formal legal proceeding during which a court makes two primary determinations: 1) that the individual is incapacitated and is, therefore, mentally and/or physically unable to handle his or her own affairs, and 2) that one or more persons shall be appointed to serve as the Guardian(s) of the incapacitated person. In designating someone as Guardian, the court will designate both the “Guardian(s) of the Person” and “Guardian(s) of the Property.” The “Guardian of the Person” refers to the individual(s) who will make health and medical decisions for the incapacitated person. The “Guardian of the Property” refers to the individual(s) who will handle the incapacitated person’s financial affairs. Usually, the same person (or people) is appointed to serve as both the Guardian of the Person and Guardian of the Property, but that is not always the case.
One reason that Guardianship proceedings may be needed is that an incapacitated child reaches the age of 18 and, due to the child’s disability, he or she cannot manage his or her own affairs. While the child is a minor, the parents are the natural guardians and can make all legal decisions for the child. However, once the child is no longer a minor, the parents lose the legal right to act on the child’s behalf. Therefore, the only way for a parent to continue to act for a child that is over 18 is for the parent to be appointed guardian of the child.
Another common reason for pursuing a Guardianship for a loved one is when an individual previously had the ability to handle his or her own affairs, but due to age and/or disability, has lost that ability. If an individual has executed financial and medical powers of attorney while he or she had the capacity, then typically a Guardianship is not needed, as the Agent and Health Care Representative will have the specific authority to act on the person’s behalf. However, if such documents have not been executed or if such documents do not appoint an agent(s) who is then able to act, the family’s only option is to pursue Guardianship proceedings.
During a Guardianship proceeding, the court appoints an attorney to represent the interests of the alleged incapacitated person. This “court-appointed attorney” must interview all of the parties and review all of the physician certifications. Ultimately, the court-appointed attorney must submit a report to the court with his or her recommendations as to whether the person seeking appointment as guardian will be in the best interest of the alleged incapacitated person. Certainly, there are circumstances in which the person seeking appointment is contested by another family member or interested party, which can lead to costly and time-consuming court proceedings.
There are some important points to consider when pursuing a Guardianship:
- Just because someone is making bad decisions, or decisions that you disagree with, does not mean that they are “incapacitated and in need of a Guardianship. Sometimes these lines are blurry, but a Guardian will not be appointed where a loved one is merely making bad decisions if that decision-making is not coupled with some cognitive impairment.
- Will one person serve alone as sole Guardian or will it be easier in the long run to have two people appointed to serve from the start? In some situations, if only one person is appointed and that person can no longer act, the court can require that an entirely new Guardianship petition be filed in order to appoint a successor.
- Does the alleged incapacitated person see at least two physicians that will certify that such a person cannot handle his or her own medical and financial affairs? Guardianship petitions require the submission of two physician certifications and each physician’s examination of the alleged incapacitated person must take place during the thirty-day period prior to filing the petition with the court. Therefore, the timing of the physician examinations and the filing of the petition with the court is very important.
- Does the person seeking an appointment as a guardian understand the duties involved? When a guardian is appointed, the guardian is now a fiduciary appointed by the court and the court continues to oversee the guardian for the duration of the time that the guardian is acting. A proposed guardian is required to complete certain training prior to being appointed and, thereafter, must submit annual reports to the court for approval.