We are often asked by prospective clients questions about guardianships. As people age, they often lose the ability to take care of their affairs. Often, the senior or disabled person anticipates a future need and either designates a preferred guardian or appoints a power of attorney. Some powers of attorney are called “springing powers of attorney” because they only take effect if the principal (the senior or disabled person) is no longer able to take care of their own affairs.
We do not practice guardianship law. But we have published this FAQ for general information and to address some of the many questions we hear.
The appointment of a guardian is not something we routinely handle. We get involved, however, if a guardian, conservator or the holder of a power of attorney abuses their power and steals from their ward or uses undue influence in an effort to have their ward sign documents, change wills and the like.
Trust and estate lawyers offer a great and needed service. They can protect you from creditors, greedy family members and help insure you are properly cared for in your golden years. A probate lawyer can also help family members set up a guardianship if needed. We step in if the guardian, trustee, conservator or even the estate lawyer oversteps their bounds and steals or abuses their power. Sadly, this happens all too often
If you or a loved one has been harmed by a guardian, conservator or holder of a power of attorney, contact us immediately. As a national law firm and elder fraud network, we can help almost anywhere in the country.
Guardianship Law Frequently Asked Questions
[Note: This FAQ is intended as a general guide. If you have specific questions or are seeking to create a guardianship, we urge you to consult with local counsel. The laws on conservators and guardians vary widely from state to state. Even the terminology is sometimes different. We can only offer assistance if your case involves the removal of a guardian or conservator for wrongdoing.]
What is Guardianship?
A guardian is a court appointed person assigned to make decisions for an adult who does not have sufficient capacity to make responsible decisions concerning his or her health or safety. In many states, a guardian can also be appointed for someone who does not have sufficient ability to communicate.
The powers of guardians vary by jurisdiction although most states require the guardianship to use the least restrictive means to protect the person (called a “ward”). These laws also require the guardian to take all steps to respect the ward’s rights and dignity.
What is Conservatorship?
A conservatorship is like a guardianship. It is more limited and used when the only issue is the ward’s ability to make responsible decisions regarding the management of his or her property of financial affairs.
In most states a probate court is responsible for appointing both guardians and conservators.
What is a Guardian Ad Litem?
A Guardian Ad Litem is a person appointed by the court, usually to help determine whether or not a guardian or conservator is necessary and to determine what is in the best interests of the prospective ward. Once the probate court rules on the evidence, a long-term conservator or guardian is appointed if warranted.
The term “ad litem” is Latin. It means “for the suit.” As noted above, guardian ad litems are temporary guardians appointed while the courts evaluate the evidence.
What is the Representative Payee?
This is a party appointed by the Social Security Administration to accept benefits on behalf of a beneficiary and ensure that those benefits are used to care for that beneficiary.
Who or What is a Power of Attorney?
A senior or other adult, if of sound mind, can appoint a person to act in his or her best interests. The terms of the power of attorney are decided by the person granting that power. Frequently they give the appointed person (the “agent”) the right to pay bills and sign documents. Every state recognizes special powers of attorney used to dictate medical care and end-of-life decisions. These are often called medical power of attorneys.
In some states, hospitals can provide advanced directive and medical powers of attorney forms (although they cannot provide you with legal advice regarding what is best for the patient).
If My Loved Needs a Guardian or Conservator, What Should I Do?
Normally, one starts a guardianship or conservatorship proceeding by filing a petition in the probate court were the elder or disabled person lives.
In many jurisdictions, you can file a petition without a lawyer, however we strongly recommend against it. By filing a petition for guardianship, you are potentially taking away the legal rights of a loved one. It is a step that is not be taken lightly.
If you can’t afford a lawyer, consider speaking with an advocate at the local or county office on aging or the state adult protective services office.
When you file a guardianship proceeding you become an adversary in the eyes of the law. That doesn’t mean that you don’t care about your loved one. Because a successful guardianship proceeding means that someone will be losing the right to handle their own affairs, the court takes steps to make sure the prospective ward is protected during the proceeding and understands what is going on.
Sometimes these cases can become quite contentious. Not only should you make sure that the guardianship is necessary, you should also take steps to find support for yourself. Seek advice from your local agency on aging or elder services or an elder law attorney. (Be aware that in some states the elder services agencies can only provide services to the ward and not to you.)
Once the petition is filed, the court will likely appoint an advocate or guardian ad litem to represent the interests of the ward. The court may also require medical testimony to better understand the capacity of the ward to handle his or her affairs.
Who Has the Right to Seek Guardianship or Conservatorship?
Once again, the rules vary from state to state. Frequently any interested person can file a petition if that petition is supported by a physician or social worker. In many states, two or more persons can file without a physician’s statement. In such cases, however, the court is still likely to order an evaluation and appoint a guardian ad litem to protect the prospective ward’s legal interests.
Who Can be a Guardian? (What Are the Qualifications of a Guardian / Conservator?)
The laws on who qualifies to be a guardian or conservator varies widely from state to state. As a general rule, courts will give great weight to someone designated or chosen by the ward, but only if the world has the mental capacity to make an informed choice.
Assuming the ward has not chosen or cannot choose her guardian, the court will want to insure the guardian or conservator doesn’t have a conflict of interest. That means nursing home administrators can’t take on that role.
Generally, courts will give first preference to a spouse followed by siblings and adult children. Depending on the age of the ward and her parents, a parent is also given preference.
If there is no willing and suitable, the court can appoint a disinterested professional as guardian. In many locals, the court has a list of nearby county or public guardians. Often these folks are employees / agents of the office on aging or adult protective services.
What is a Public Guardian?
Public guardians are usually people designated by the probate court or a state agency to serve the needs of seniors and disabled adults when no one else is available or qualified to do so.
Unlike ordinary guardians, public guardians normally have minimum training requirements, submit to a credit and criminal background check and have liability insurance. Frequently they are paid from the ward’s assets or income.
In some jurisdictions a state or county agency and not an individual can be appointed guardian.
I Filed for Guardianship, What Next?
Assuming that all the procedural rules are followed, a probate judge will first determine if there is reasonable cause for the petition to proceed. Think of this as a weeding out process. Aunt Martha might be a bit eccentric, but the courts must determine if she has the ability to make decisions for herself.
If the court determines from the petition to believe that the elder or disabled person cannot take care of his affairs, the court next notifies the potential ward that there is cause to believe that the ward is in need of protection.
Once the prospective ward has been notified, the court usually does two things, it sets up an evaluation and it appoints a guardian ad litem. Wards have the right to also be represented by counsel and in many states, the court will appoint legal counsel if they cannot afford their own.
Once a guardian ad litem and legal counsel have been appointed, the next step is an evaluation. That is usually done by a physician or psychologist. The court can also order a home visit or home study to better understand how the elder is living.
How Long Does the Process Take?
Most states give a priority to guardianship hearings. The process can still take a couple months, however. This is especially true if the hearing is going to be contested.
That’s Too Long, Is There an Emergency Guardianship or Conservatorship?
Unfortunately, some wards are in such dire need of protection that the courts must act immediately. This can happen if a ward is unable to make medical decisions, is a danger to himself or if his assets are being rapidly depleted.
In most states, there is an emergency procedure that can be used but only upon a showing of an immediate and substantial risk of death or serious physical injury, illness or disease unless an emergency guardian is appointed or an immediate and substantial risk of irreparable waste or dissipation of the ward’s assets.
Emergency guardianships almost always require a high burden of proof and medical testimony. They are usually temporary in nature until a full evaluation and hearings can be held.
In some states, in lieu of the appointment of a temporary guardian, wards in immediate need of assistance are placed in the temporary custody of the state’s adult protective services agency.
How Long Do Guardianships / Conservatorships Last?
Courts have wide latitude in crafting guardianship orders. In all states, judges are supposed to craft the least restrictive remedy necessary to protect the elder or disabled person. In the case of temporary disabilities, the guardianship may be quite short. In other cases where the ward’s condition is not likely to improve, the court may order periodic reviews.
If Appointed as a Conservator or Guardian, Do I Need Special Training?
In most states, the answer is no although county offices on aging often have a wealth of information to help guardians.
Can’t a Power of Attorney Do the Same Things as a Guardian?
The short answer is no. Laws vary widely by jurisdiction but as a general rule, guardians derive their power from the court. An agent in a power of attorney setting derives his power from the principal. That means the principal (the senior) can fire her agent even if she doesn’t have the mental capacity to understand what she is doing.
Another difference is in required accountings. Some states require the guardian to submit a report for approval by the court. There is no court oversight of powers of attorney, however.
What Legal Duty Do I Have as a Guardian? (Fiduciary Duty)
Whether you are appointed a guardian or conservator, in most states you are considered a fiduciary. That is a legal term indicating you owe the highest duty of care to the ward. Any misuse of funds or other powers can land you in serious hot water or even in jail.
As elder financial abuse lawyers, we step in if someone has abused their fiduciary duty to a senior or disabled person. Whether they are a guardian, conservator, hold a power of attorney or act as a trustee, we are ready to step in to both remove the misbehaving guardian and seek to restoration of any missing funds.
Simply because a senior is subject to a guardianship order doesn’t mean that she loses all her rights. Wards always have the right to have a seek removal of the guardian if he is no longer necessary or is not acting in the wards best interest.
The ward also has the right to expect her guardian to use her property for her support, care and welfare and to have reasonable access to her guardian.
Because courts are required to craft the least restrictive limitations, many wards enjoy almost complete freedom. Most orders appointing guardians and conservators require the guardian to consult with the ward and try to accommodate her wishes to the extent they are reasonable.
That means guardians cannot prevent family members from meeting with their loved one or restrict the ward’s friends except in very extenuating circumstances. Guardians are there to protect and enhance the ward’s life. A guardianship is not a prison sentence.
Unfortunately, we do know some guardians who misuse their power and steal from the senior. One of the red flags we see are guardians who isolate the ward from family and friends.
Who can forget 93-year-old Andy Rooney testifying before Congress on how his stepson isolated him and stole millions? [Andy’s subsequent guardian was one of the good guys, he used his conservatorship powers to successfully sue Rooney’s first caregiver.]
The lesson from the Rooney case is that sometimes guardians, caregivers and others abuse their power. If you are prevented from visiting Mom, ask yourself why and get some legal help. Maybe Mom truly wants to be alone or maybe she has been coerced into giving her assets to a dishonest caregiver or guardian.
Wards subject to conservatorships generally have even less restrictions as aa conservator’s powers are usually limited to fiscal matters.
Once again, if you feel that a loved one is being abused by a guardian or other person or if you are a senior. disabled person subject to a guardianship order and believe you are being abused contact us immediately. Don’t be afraid to reach out for help. The hardest step is the first step. For more information, contact us online or by phone at 833.201.1555 (toll free). All inquiries are protected by the attorney – client privilege and kept confidential.
What Are the Kinds of Things Wards Typically Can’t Do?
Remembering that courts are supposed to look to the least restrictive limitations, wards generally cannot marry, enter into legally binding contracts, file lawsuits (except to terminate the guardianship), change wills or trust documents and move.
Depending on their state of residence (and their mental state), they may or may not be allowed to vote. They also can’t make medical decisions although some states will honor a ward’s pre-existing advanced medical directive or medical power of attorney.
What Happens if the Ward Runs Out of Assets?
The guardian or conservator is never obligated to meet the senior’s financial needs out of pocket. If there are no more assets, the ward becomes a ward of the state.
Can the Guardian Liquidate Assets?
We hear this one frequently. The guardian elects to sell the family home to pay for the ward’s medical bills. Some of the children say the home was promised to them. What happens? The answer is the guardian often wins. The guardian is charged with looking after the ward’s best interests, not the family’s interests. This can create tensions when the guardian is a family member.
There are safeguards built into the system. In most states interested parties such as family members can petition the court if they feel the guardian is doing something wrong. Also, many guardianship orders require court approval before major assets can be liquidated.
If you think the guardian is abusing her powers, call us.
What Responsibilities Does the Guardian or Conservator Owe to the Ward?
The guardian must do what is reasonably necessary to provide adequately for the support, care, education, and health and welfare of the Ward and that includes:
- Respect and maintain rights and dignity;
- Become or remain personally acquainted with the Ward and maintain contact with the Ward to know of the Ward’s capacities, limitations, needs, sufficient opportunities and physical and mental health;
- Arrange for the support, care, education, health and welfare of the Ward, considering the Ward’s needs and available resources;
- Take reasonable care of the Ward’s personal effects;
- Cooperate with the conservator;
- Use money of the Ward that has been received for the Ward’s current use; and
- Conserve for future needs any excess money of the Ward the guardian receives.”
[Special thanks to the Georgia Division of Aging Services. They answered this question better than we could!]
I Have Been Appointed Guardian, Am I Responsible for the Ward’s Actions
Let me share a true story based on my own experiences. Before my mother moved into an elder care facility, she continued to drive her car even though we contacted the state DMV and a hearing officer revoked her license because of mental impairment.
We also deflated the car’s tires and took all the keys we could find. We did this not out of malice but out of love. We didn’t want her getting hurt in an accident or harming others.
But would have happened if she managed to get behind the wheel and cause a tragic accident? My story is similar to dozens of others. Unless the guardian was negligent, he or she is not responsible for the actions of the elder.
Taking on a guardianship can be quite an undertaking. If you volunteer and are appointed, commit to doing the best job possible.
Mom may still get behind the wheel or dad may sign a contract without your blessing, but you shouldn’t be personally liable if you act diligently. No one expects you to have eyes in the back of your head.
[Reminder, this is general advice. The liability of guardians varies state by state. As a general rule, if you perform your duties diligently, you shouldn’t have any problems.]
I Think the Guardian Is Abusing Her Power, What Can I Do?
In most states interested parties have the right to petition the court to investigate misconduct by the guardian. An interested party can be a family member or a trusted friend. Interested parties usually have the right to ask the court to consider less restrictive limitations or change guardians.
Procedures vary greatly by jurisdiction, contact a lawyer in the area where the guardianship was granted.
If you believe the guardians is engaged in misconduct such as stealing, give us a call.
What Happens if the Guardian Can No Longer Serve?
This happens frequently. Guardians and conservators can resign with notice to the court. Normally the ward, if she is able, or the guardian can recommend a replacement guardian. The courts follow the same procedures as if they were selecting the initial guardian. That is, preference is given to parents, children, etc.
What Happens When the Guardian or Conservator Steals? (Elder Financial Abuse / Breach of Fiduciary Duty)
As noted earlier, guardians and conservators are legally bound to act in the best interest of the elder or disabled person. Stealing is a crime and a breach of fiduciary duty. The guardian can be criminally prosecuted. On the civil side, he or she can be removed and sued for damages. That is where we step in!
Courts have wide latitude to correcting these heinous actions. In addition to monetary damages, courts can sometimes order a trust over the stolen assets. That means that even if the guardian is no longer holding the property, we can petition the court for a constructive trust on the illegal proceeds.
Despite the ability to sometimes get a protective trust, time is not on your side. The quicker you call, the sooner we can act. Even though the subsequent conservator in the Andy Rooney case was able to win a multimillion settlement form Rooney’s stepson and stepson’s wife, they were bankrupt. The money was spent.
If you or a loved one has lost money because of the actions and wrongdoing of a guardian or conservator, call us immediately.
We are both a boutique elder financial abuse law firm and a national network of fraud recovery lawyers. Anywhere in the nation, we can seek assets and work to give bad guardians the boot.