When a person is legally deemed incapable of managing their own affairs and has not named a financial power of attorney to do so, a guardian or conservator may be needed. A family member may be appointed to the task, as explained in a recent article “What to Do When a Family Member Needs a Guardian” from Kiplinger.
In California, guardians are for minor children who do not have either parent who has custody of the child. The guardian takes care of the child and the child’s money – guardian of the person and guardian of the estate. In California, if a person is age 18 or older, a conservator may be appointed to manage a person’s financial affairs or health care decisions if they are unable to do so for themselves. These terms vary by state, so ask the estate planning attorney which ones are most appropriate for your situation. In many cases, one person takes on both roles.
The control over another person’s life and money has been in the news a lot lately. The years-long battle between Brittney Spears and her father showed how things can go wrong, as did the movie “I Care a Lot,” about a professional guardian who steals life savings from elderly people.
It is better for an adult child to care for a parent through the use of Power of Attorney and Healthcare Power of Attorney than having to go to court to gain control through a guardianship/conservatorship. Having these documents prepared while the person still has legal capacity to execute them is far easier and less costly. Guardianships and conservatorships are last resorts when no prior planning has been done.
How does it work? Rules vary from state to state, but generally, a person—referred to as the petitioner—files a petition with a local court to seek guardianship/conservatorship. A judge holds a hearing to determine whether the person in question, known as the respondent, meets the state’s standards for needing a guardian/conservator. The respondent has a right to have an attorney represent them, if they do not feel they need or want to have a guardian/conservator.
Guardianship/conservatorship does more than give another person the right to make financial decisions for another person. Under guardianship/conservatorhsip, a person may lose the right to vote, marry, travel, or make certain medical decisions. Courts are often reluctant to take away all of these rights. In many states, courts are allowed to limit the guardian’s/conservators authority to managing bills and maintaining a home.
The least intrusive option is preferable, which would be using the Power of Attorney and Health Care Power of Attorney in the first place.
Another point—most courts will not grant a guardianship/conservatorship, if a person is physically disabled but mentally sharp. Making bad decisions, like handling money irresponsibly, or keeping company with people who are potentially preying on a senior, is not enough reason to put someone under guardianship/conservatoship. You cannot always protect someone from themselves.
However, the need for guardianship/conservatorship is clear if a person has suffered a stroke and is in a coma or is suffering from dementia. Other reasons are severe depression where a person cannot function or delirium, when a person is unaware of their environment and confused by everything around them. Delusional disorders are also reasons for guardianship/conservatoship.
When the person meets the standard of need, the courts typically prefer to appoint a family member. However, if there is no appropriate person, a public guardian paid by the state or a professional guardian paid by the family can be appointed.
Filing a guardianship/conservatorship petition can cost thousands of dollars, and a professional guardian/conservatorship can charge upwards of $250 an hour. Most guardians/conservators are well meaning, but often run into conflicts with family members. The guardian’s/conservator’s job is to protect the person, not serve the interest of the family. If the family’s sole interest is in protecting their inheritance, the guardian can find themselves in a difficult situation.
Family members serving as guardians can also find themselves in difficult situations. The guardian/conservator, whether a professional or family member, must keep meticulous records of any monies spent and the tasks performed on behalf of the person.
The better solution is to prepare in advance with a Power of Attorney, Healthcare Power of Attorney and all of the estate planning documents needed so the family can act without court intervention, the costs of applying for guardianship/conservatoship and the possibility of a professional guardian being appointed.
One of the main goals of our law practice is to help families like your plan for safe, problem free, and successful transfer of assets to the next generation. Call our office today to schedule a time for us to review your estate plan and identify the best strategies for you and your family to ensure your legacy of love and financial security. Our office is located in Santa Ana, CA but we serve all of California including Irvine, Orange, Tustin, Newport Beach, and Anaheim.
Reference: Kiplinger (Jan. 25, 2022) “What to Do When a Family Member Needs a Guardian”