When mom starts forgetting to take her medicine or fails to pay the electric bill for several months people begin to ask if somebody needs to step in and help. Guardianship is one method of taking over management of a person’s affairs. It is not, however, the easiest method, nor the least expensive. It is more like an option of last resort.
Types of guardianship
A guardian is a person appointed by the court to manage the affairs of a disabled person (or sometimes a minor). There are two types of guardianship: Guardian of the person and guardian of the estate. A guardian of the person is appointed to manage the physical health and well being of a person. A guardian of the estate is appointed to manage the financial affairs of the disabled person (i.e. their estate).
Appointing a guardian
If a person has not previously executed a power of attorney and now lacks decisional capacity, guardianship is the only option. A person (typically the adult child of the disabled person) files a petition seeking to be appointed as guardian. That person must submit a doctor’s report establishing that the person is disabled. The disabled person has a right to challenge guardianship if they believe that they are not disabled. Other people can challenge the appointment of a particular person as guardian. If no challenges are made the process can be completed in a month or two. If the appointment is challenged, the process can take several months.
Responsibilities of a guardian
Once appointed, the guardian must post a bond (in most cases) to ensure adequate protection of the disabled person’s assets. Thereafter, the guardian can make limited decisions for the person. For monetary assets, expenditures are usually made pursuant to a budget approved by the court. Major decisions, such as selling a house or placing the person in a nursing home, require approval from the probate court. At the end of each year, the guardian must present an accounting of all money spent and a report about the condition of the disabled person. The guardian normally hires an attorney to handle the preparation of accountings and make court appearances on their behalf.
Costs of guardianship
Typically an uncontested guardianship will cost between $2,000 and $4,000 up to the point where the guardian is appointed. If the guardianship is contested, the fees can increase substantially. Also, because of the ongoing reporting requirements and associated legal fees, there is a cost to maintaining a guardianship each year. This can run another $1,500 or more per year.
These expenses are paid from the assets of the disabled person and require the approval of the probate court. The guardian is entitled to payment of a modest fee for their time and is reimbursed for out of pocket costs.
A better option: powers of attorney
While guardianship is a necessary process for those who need it, it is something to avoid if possible. The best way to avoid guardianship is to prepare a durable power of attorney for health care and property. The forms are simple and the process is inexpensive. More importantly, the agent is somebody chosen by the person not by the courts and they are authorized to act without ongoing court supervision.
Ideally, powers of attorney should be executed well in advance of any signs of diminished capacity. If your aging relative seems to be slipping a little and powers of attorney have not already been executed, consult a lawyer as soon as possible. They may still be able to sign powers of attorney if they have sufficient cognitive abilities to meet the requirements of legal capacity (which is not a very high standard). If not, then guardianship may be the only course of action available.
For more information about guardianship, visit the Illinois Guardianship and Advocacy Commission website.
** This article was edited by Mark Schmidt
Photo courtesy of Thomas Roche on Flickr.com.