A FIRM DEDICATED TO ELDER LAW AND SPECIAL NEEDS PLANNING

GUARDIANSHIP

WHEN DO I NEED A GUARDIANSHIP?

 

A guardianship is needed when a loved one becomes physically or mentally incapacitated to the extent that the individual can not function on his or her own, and  there are no advance directives in place to act for that person. Sometimes, a guardianship is needed when a person’s behavior precludes the ability to solve the problem with advance directives.

 

 

ARE THERE DIFFERENT TYPES OF GUARDIANSHIP?

 

Yes. If a person is totally incapacitated, then a plenary guardianship is required. If a person can exercise some judgment and can physically function in some areas, then a limited guardianship will most likely be the court’s ruling.

 

 

IS GUARDIANSHIP EXPENSIVE?

 

Establishing a guardianship can cost a few thousand dollars or much more, if contested. It is therefore important to first ascertain whether or not there will be any opposition, either to the petition for incapacity or appointment of guardian, before the case is filed. If the client thinks that there will be opposition, he or she should try to resolve any differences before filing and incurring the expense of litigation.

 

 

WHAT IS THE DIFFERENCE BETWEEN A POWER OF ATTORNEY AND A GUARDIANSHIP?

 

A Power of Attorney is an agency. This means that the person who gives a Power of Attorney (the principal) to someone else (the agent) is appointing the agent to act on his or her behalf. If the agent does what he or she thinks is right and the principal acts to the contrary, such action revokes the agency for that issue. A Guardianship is a court appointment so that the person who is appointed (the Guardian) acts on behalf of the person who is incapacitated (the ward) and can not be contradicted by the ward.

 

 

CAN GUARDIANSHIP BE TERMINATED?

 

Yes. If an adult under a Guardianship regains his or her capacity, a petition can be filed to restore legal capacity. The court will appoint a psychiatrist to examine the ward and write a report to the court to be entered into evidence. When a minor is under a Guardianship and turns 18 years of age, the Guardianship ends. All funds held in the Guardianship account are then given to the ward.

 

 

CAN MEDICAID PLANNING BE DONE WITH A GUARDIANSHIP?

 

The answer to this question depends on the judge’s receptiveness of the attorney’s petition for Medicaid Planning. The type of planning requested, money involved, and whether or not there is a spouse in the community all factor into how a judge will react to the petition. A large part of the success the client will have depends on the attorney who files the petition. In this regard, an attorney skillful in guardianship, as well as Medicaid Planning, will typically have the best chance of success.

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