Guardianships - Alternatives

  1. Guardianships
  2. Kinds of Guardians
  3. Conservatorship
  4. Power of Attorney
A guardianship is an involuntary trust relationship in which one party, called a guardian, acts for an individual called the ward. The law regards the ward as incapable of managing his or her own person and/or affairs.

A guardian is any adult person, association, or corporation appointed by the Probate Court to assume responsibility for the care and management of the person, the estate, or both, of an incompetent person or minor child. A corporation can only be guardian of the estate and not of the person. A person for whom a guardian has been appointed is called a ward.

A guardian may be appointed for either an incompetent or minor, which are defined by statute as:
  • Incompetent: Application for Appointment of Guardian for Alleged Incompetent
    Any person who is so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that he is incapable of taking proper care of himself or his property or fails to provide for his family or other persons for whom he is charged by law to provide, or any person confined to a penal institution within this state.
  • Minor: Any person under 18 years of age who has neither father nor mother or whose parents are unsuitable to have custody and tuition of such minor, or whose interests, in the opinion of the Court, will be promoted.
Note: With respect to a Minor's Settlement, the natural parents do not have an inherent right to settle personal injury claims on behalf of a minor child. The Probate Court must authorize approval of such settlements. If the settlement exceeds $10,000, the Court will require the appointment of a guardian of an estate.

A guardian may be appointed by the court to oversee the legal and financial affairs (and/or the personal care) of a minor, or of an adult who is not able to manage his or her own affairs because of advanced age or some other physical or mental disability. A guardianship is typically an involuntary process, as family members or others ask the court to act to protect someone who appears to be incompetent. Once appointed, a guardian is answerable to the court for providing proper care and management of the ward's affairs in the ward's best interest.

Appointing a Guardian

The Court appoints the guardian. However, a minor over 14, or the parents, by Will, may suggest a guardian for a minor. In addition, an adult, while competent, may nominate a guardian to serve in the event of incapacity.

An application for guardianship is filed in the Probate Court of the County of the ward's residence by an interested party, or on the Court's own motion.

The application must include a statement of the guardian's willingness to perform as guardian, a bond as required by law, and, in the case of a prospective incompetent ward, a statement of the ward's mental and physical condition from a treating physician, psychiatrist, or licensed psychologist.

The prospective ward, as well as the adult next of kin, are notified of the impending guardianship and date and time of hearing as prescribed by law. In the case of an incompetent proceeding, the notice and a statement of rights will be served on the prospective ward by a Court Investigator.

An investigation is conducted, in the case of a prospective incompetent ward, by a Court Investigator, which includes an interview with the prospective ward in order to assist the Court in determining the advisability of guardianship.

A formal hearing is conducted by the Judge or Magistrate to determine if a guardianship is necessary, the guardian is suitable, and the guardian understands his duties.

What Are the Rights of the Ward?

The prospective ward has the right to be present at the hearing, to contest any application for guardianship, to have a record of the hearing taken, to have a friend or family member present at the hearing, and to be represented by an attorney. A prospective incompetent ward has the additional right to present evidence of a less restrictive alternative, and, if indigent and requested, to have an attorney and independent expert appointed at Court expense.

Guardian's Inventory

A guardian of the estate of a ward must file an inventory of the ward's assets within three months after appointment. The inventory must list all real and personal property of the ward and the annual value of the rental of any real estate.

The probate court may require that the inventory be supported by evidence and that the guardian produce prior income tax returns, bank statements, Social Security records of the ward or any other relevant documents. In addition, the probate court may appoint an investigator or assign court employees to conduct an investigation to verify the accuracy of the inventory. At the time he or she is appointed, a guardian may not open a ward's safety deposit box until it has been audited by the county auditor of the appropriate county involved, on behalf of the Court. The probate court may appoint an auditor's representative to also serve as a deputy clerk of the Court for such purposes.

Guardian's Account

Every guardian, except a guardian of the person only, must file an account in the probate court annually. A final account must be filed within 30 days after the termination of the guardianship. This account must include an itemized statement of all receipts, disbursements and distributions made from the ward's estate. All transactions must be verified by vouchers or proof, unless a corporate fiduciary is involved. The accounting must also contain an itemized statement of all funds, assets and investments in the guardian's hands at the end of the accounting period, and any changes in investments since the last account was filed. Actual securities and passbooks or bank statements must be exhibited to the probate court for examination, and the account must be made on the signature and oath of the guardian.

A guardian of the person only may also be ordered to provide an accounting from time to time for good cause shown on the court's own motion or on the motion of any interested party.

Guardian's Report

A guardian's report to the Probate Court is required of all guardians of incompetent persons. This report must be filed annually after the date of a guardian's appointment. The Probate Court, on motion or by rule, has the authority to require such a report at any time.

The guardian's report must be made on a court-prescribed form, and must contain specific information, including a list of the number and nature of contacts with the ward over the period covered by the report; any major changes in the ward's physical or mental condition observed by the guardian; the guardian's opinion as to the necessity for continuing the guardianship; the adequacy of the care that the ward is receiving; and the date that the ward last saw a physician. The purpose of the report is to assist the Probate Court in determining if the guardianship should be continued. The Court may appoint an investigator to verify the report.

Enforcing Compliance

  • Citations: If a guardian fails to timely file a report, inventory, or accounting, the Court may cite a guardian to appear, and may fine, reduce the guardian's fee, or remove, the guardian.
  • Investigations: To determine if a guardianship is functioning properly, the Court may order an investigation by a Court Investigator, Law Enforcement Agency, Adult Protective Service, or other County Agency.
  • Prior Approval: The guardian must first obtain approval of the Probate Court before entering into contracts or leases, making improvements to real estate or mortgage real estate, selling assets of the ward, expending the ward's assets or settling any personal injury claim for the ward.
  • Removal: The Court may, at any time and in the best interest of the ward, remove the guardian.

Being an Effective Guardian

The key to being an effective guardian is to have as much knowledge about and direct contact with the ward as possible. The guardian should make every attempt to have a positive relationship with the ward, visit and communicate with the ward often and generally demonstrate personal concern for the ward and his or her well being. It is also important to establish and maintain a positive relationship with all of the ward's family members. A guardian will find that he or she can avoid problems and complications by keeping all family members informed of what is going on with the guardianship, and actively inviting them to participate to the extent practical. Problems rarely arise in those guardianships where the guardian makes both the ward and his or her family members feel that they are important members of a team.

Inter Vivos Trust

An inter vivos trust is a confidential relationship involving a trustee, usually a bank, who manages only the property of a living person for the benefit of that person or someone else. Banks often require a minimum trust amount.

Representative-Custodial Payee

A Representative-Custodial Payee is an individual authorized to receive and expend Social Security, Supplemental Security Income, or Veteran's benefits, on behalf of the recipient, based upon a Court finding of mental incompetence or on submission of evidence to the Social Security or Veterans Administrations of mental or physical incapacity which impairs management of the funds.

More Information

If you or someone close to you needs information on how to set up a legal guardianship ask friends and family members for the name of an attorney who is knowledgeable about probate matters. If necessary, contact the lawyer referral service operated by your local bar association or one nearby. Check the Yellow Pages under associations or attorney referral services.

Guardianship Education

Note: Except for Representative-Custodial Payee, all alternatives involve a person who has capacity, or is competent, to grant powers. If the person does not have capacity when the powers are granted, they are subject to challenge, and may be void.



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