Adult Guardianships 101: When It Is Too Late to Do Estate Planning

By: Janice Dantes

 

Irecently met with a nice 87 year old woman and her caregivers. She was bound to a wheelchair after suffering a stroke. She was completely dependent on her caregivers and would not be able to live on her own without their assistance. While her caregivers stated that she was interested in a will and powers of attorney, she was unable to talk, write, or otherwise communicate with me what her intentions were. As a result, I politely declined to do her estate plan and offered her caregivers and other relatives to discuss options for Guardianship.

Guardianship of a disabled adult, also known as a conservatorship in other states, is appropriate when an adult becomes incapacitated and is unable to make medical decisions and/or fi nancial decisions for himself/herself. Guardianships can typically be avoided with the execution of a power of attorney for healthcare and a power of attorney for property before one becomes incapacitated. However, not everyone has the foresight to complete these documents before they become incapacitated.

Sometimes these types of guardianships are temporary (e.g. Britney Spears) and other times they are for the lifetime of the disabled person (e.g. an adult develops Alzeimer’s, is disabled from a stroke, is in a coma, etc.). Guardianships are incredibly expensive and can cause signifi cant family rifts when relatives are in disagreement with how the disabled adult should be cared for (e.g. the adult children may want to place the disabled adult in a nursing home while the adult siblings prefer that the disabled adult be cared for at home.

Below is a summary of the Adult Guardianship process:

1. It begins with a Petition. If you are seeking a guardianship of a disabled adult, consult with a lawyer on creating a petition. In the Petition, you will state your reasons for seeking a guardianship and why a guardianship is appropriate. Your petition should state if you are seeking a guardianship of the person (meaning, authority to make medical decisions only), guardianship of the estate (meaning, authority to make fi nancial decisions only), or both guardianship of the person and estate.

2. You Need a Doctor. When seeking a guardianship over a disabled adult, you must obtain documentation from a doctor stating that the disabled adult is unable to make medical and/or fi nancial decisions on their own. It is not enough that you believe the disabled adult cannot take care of himself/herself.

3. Can the disabled adult come to court? If the disabled person is physically able to come to court, this route is typically preferred. This way, the Court can talk to and observe the disabled person directly. In the event that the disabled adult cannot come to court, the judge may appoint a guardian ad litem (GAL), a lawyer who serves as the eyes and ears of the court, to investigate the disabled adult’s condition and determine if the guardianship sought would be appropriate.

4. What happens if the disabled adult does not want me to be his/her guardian? If this is the case, you have a contested guardianship case. You will have to demonstrate that a guardianship is required and in the best interest of the disabled adult despite his/her own wishes.

5. What if someone else wants to be guardian? My recommendation is to try to work out the issues outside of court. These types of cases are very fact specifi c to determine the best interest of the disabled adult. There can be co-guardians appointed.

If you feel that you might need a Guardianship for a loved one, please contact me at (312) 546-5077 or janice@pinaylaw.com.

Thank you for reading. Until we meet again, love one another.