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WhoCanISue.comFamily Guardianships

Find A Family Law Attorney for Guardianships

Summary

Guardianship also known as conservatorship is a legal mechanism by which the court appoints someone to serve as care giver for a child or an incapacitated adult.  These cases are usually handled by a family law attorney. The person placed under legal protection becomes a ward.

Around half a million elderly Americans are estimated to be getting the help they need through court-appointed guardianship. Their average age is 80 and more than half of them live in nursing homes.

When an elderly individual suffers from a mental disability, such as dementia or Alzheimer's an expert must rule them incompetent before guardianship is warranted. While laws on incompetency vary, in some states a person can be declared incompetent due to advanced age only. A family law attorney can help with the guardianship laws in your state.

Courts have the broad discretion on whom to appoint as guardian and whether more than one guardian at a time is needed. Generally, however, the court looks to a spouse, adult child, parent, brother or sister, in that order, to fill the guardianship role. As a last resort ,an independent professional is appointed.

In most states, any person 18 years of age or older, who is of sound mind and has not been convicted of a crime, is qualified to become a guardian.

After a guardian is selected, the court transfers the responsibility for managing the medical, personal and financial affairs of the ward to that guardian.

In some states, guardians are allowed to make all-encompassing decisions; such as: where their ward will live, if they can drive, marry, divorce, vote or even refuse medical treatment.

Guardianship are not confined to the elderly or the disabled. Minor children without parents require guardians. Once a parentless child turns age 18, the law presumes them capable of handling their own affairs.

All legal guardianship involve the court, and there is the likelihood that an individual’s personal affairs will be opened to examination.  A guardianship may be terminated for a variety of conditions but, once in place, it is often difficult to reverse. Generally a guardianship does not stop unless the court agrees that it can stop.

The following substitutes are sometimes allowed in place of a guardianship:
Banks, Bill paying programs, Living trusts and Advocacy services may occasionally take the place of Guardianship of the Estate.

A Health Care Surrogate provides a parent, spouse, child, sibling or friend the authority to make medical decisions for an incapacitated person, such as whether to forgo life sustaining treatment.

Adult Protective Services may be ordered by the court for short term protective services when an adult with a mental or developmental disability is being abused or neglected.

Power of Attorney can be an alternative to guardianship when enacted by a competent person. It is not used when an individual suffers from a mental disability, such as Alzheimer’s or retardation.

Microboard is a concept used in several states (such as Tennessee, Maryland and Missouri) which allows a care support group to formalize their commitment to a disabled individual by incorporating.

Since guardians are given broad authority, there is the potential for abuse. Cases where guardians have stolen money from and/ or physically abused those they promised to protect have been brought to trial.

Parents are the guardians of their biological children until they reach age 18. If a parent can no longer care for their child, a guardian is appointed. While a guardian may apply for benefits to which the child is entitled (like food stamps and Social Security), they may also have to provide their own money. When a minor ward has assets, the court may require that the guardian post a surety bond to protect the child’s money from being stolen or misused.

In rare instances, biological parents are appointed as "guardians of the estate" for their own child. This need arises when the child receives a substantial amount of money, usually from an insurance settlement ,and the payer requests that the proceeds be paid into a secure account which only the child’s guardian can access.

Guardianship for a minor child is terminated only when:
  • the child reaches the age of majority (usually 18), marries, is adopted or dies.
  • the guardian becomes incapacitated, dies, resigns or is removed by a court order.
  • there is an outside court petition to have the guardianship removed, or the court decides that the guardian is no longer needed.
In most states, a child age 14 or older may chose their own guardian. If the child is under age 14 or lives in a state that does not follow this rule, the guardian is selected by the court.

When a child is sent to stay with friends or relatives for a few months, a formal guardianship is generally not required.

Who Can Sue

Guardianship intervention is a sensitive area of the law which involves will contests, trust disputes and other fiduciary litigation.

Families often end up in court fighting over who should be appointed legal guardian of a loved one. Sometimes the dispute over money and control becomes so heated that it requires intervention by an outside party to resolve. An attorney can often lessen the conflict and avoid lawsuit by determining the type of guardianship needed, and who is best suited to provide it.

When a non-relative guardian is named as a beneficiary in a family will or trust, it is not unusual for the other disgruntled beneficiaries who feel they were treated unfairly to try to overturn it.  An experienced family or estate attorney can help either party in trying to resolve this conflict.

An individual facing unwanted guardianship adjudication has the right to protest it in court, and to request an independent mental or physical evaluation.

The need of guardianships for incapacitated adults suffering from dementia or Alzheimer’s disease is on the rise as our aging population lives longer. Children caring for an elderly parent may need to file for guardianship if they do not have a durable power of attorney or a health care proxy.

Once guardianship is deemed necessary for either you or a loved one, a family law attorney can assist you in preparing the proper paperwork, decide if an insurance bond is needed and present the request to the court.

While guardianships for minors are largely secured without a lawyer’s involvement, most experts recommend formalizing the arrangement through an attorney to avoid legal pitfalls down the road. This is especially important when a single parent is sent away because of military duty, as it could affect the child’s enrollment in a new school, moving to another state or having the authorization to undergo emergency surgery.
 
If you are a beneficiary or heir of an estate that you believe was mishandled by a guardian due to misspending or embezzlement, it is important to hire a family law attorney who can evaluate your claim and then seek compensation on behalf of either the ward or yourself. In cases, where a guardian misspent the money to benefit himself, or lost it through risky investments or an unapproved property sale, a lawsuit against the guardian may be warranted. In this type of lawsuit, time is of the essence. Consult with an attorney who can review the evidence and prepare a legal challenge before your right to sue has expired.

Potential Recovery

In January 2009, after being caught stealing approximately $4-million from 23 of his wards (money he used for a kitchen renovation, in-home theater, landscaping and mortgage payments) an appointed N.Y. guardian faced trial. Instead of the millions he took, his fee for caring for individuals who could not care for themselves should have been no more than 2 percent to 5 percent of their assets. After he was jailed, some of the money was recovered through insurance and a state fund that reimburses clients up to $300,000.

 2004, A Long Island family law attorney was found guilty of stealing $2.1 million from 17 incapacitated people he was assigned to protect, including $272,000 from an Alzheimer's patient. Over a five-year period, the former guardian now serving a sentence of three to nine years used the embezzled funds to buy a mansion in Maui and amass a collection of rare wines. Some of the money he stole was recovered.

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