Guardian of the Estate vs. Guardian of the Person
The court appoints Guardians to protect and assist incapacitated persons. The type of guardian the judge appoints will depend on the facts and circumstances of the individual and how best to assist them. How facts are presented can make the difference between success and failure. Proceeding without experienced advice can increase costs and effort, which is why it is important to have the assistance of an experienced Guardianship Lawyer.
The judge appoints a Guardian of the Estate when the judge determines a person is no longer competent to manage his or her assets and needs the assistance of a third party. Furthermore, the judge appoints a Guardian of the Person if the incapacitated person is no longer able to care for themselves at all. In some cases, a Guardian of the Person and Estate is appointed.
What Does A Guardian of the Estate Do?
A Guardian of the Estate is appointed by a judge to manage an incapacitated person’s funds. If an interested person believes that someone is unable to care for themselves, they can have a Guardianship Attorney submit a Petition for Guardianship.
Once appointed, the Guardian of the Estate secures and inventories the incapacitated person’s assets. The Guardian must submit this list to the judge. The Guardian of the Estate then manages the assets, providing funds for the incapacitated person’s care providing the court periodic reports.
Guardian of the Person
A Guardian of the Person takes two forms. First, it is someone you appoint in your Will to raise your minor children. Read more about Guardian of a Minor. Second, a Guardian of the Person can also be a person appointed by a judge to manage an incapacitated adult’s day-to-day activities. If an interested person believes that someone is unable to care for themselves, they can have a Guardianship Lawyer submit a Petition for Guardianship.
What Does A Guardian of the Person Do?
The Guardian of the Person for your minor child replaces you at your death. The Guardian is responsible for your child’s care and well-being just as you are. Like a natural parent, the Guardian of the Person must provide the basic items necessary for a child; food, safety, access to an education, medical care, clothing, and socialization. Read more about Guardian of a Minor.
The Guardian of the Person for an incapacitated adult takes on the same responsibilities as a parent would for a minor child. They are to take steps necessary to make sure the incapacitated person is safe, fed, clothed, provided medical care and socialization.
When the Guardian of the Person is not the Guardian of the Estate.
The Guardian of the Estate might be a different person from the Guardian of the Person. If so, the Guardian of the Person must work in close collaboration with the Guardian of the Estate. The Guardian of the Person needs funds to pay for the incapacitated person’s care and well being. The Guardian of the Estate will need information to justify these expenditures. Often the Guardian of the Person will pay for expenses and then submit for reimbursements. The judge’s order may provide for some flexibility, or it might require that the Guardian of the Estate Petition for expenditure payments. The Guardians are subject to a surcharge; personally responsible for errors that harm the incapacitated person.
Formal Accountings and the Guardian.
Because the Guardian of the Estate is personally responsible for errors, filing a Formal Accounting each year is a wise idea. Though the judge must approve the expense, generally the reasonable cost of retaining an Estate Planning Lawyer to assemble and submit the accounting is reimbursed as a normal cost. Professional Guardians, recognizing their liability, regularly file formal accounts.
Uncontested Guardianship vs. Contested Guardianship.
The Guardianship proceeding can be straightforward if all interested people agree the person is incapacitated and agree on who should serve as Guardian. But to be straightforward, the Judge needs all the relevant information and evidence. If the judge believes some evidence or testimony is missing, the Guardian appointment is delayed. Taking away a person’s right to control their money and to decide where they spend their day is a serious decision. Therefore, preparation is vital. An experienced Guardianship Attorney ensures the judge receives necessary evidence and follows procedures.
If there is a disagreement, then the matter becomes a contested hearing. Examples of disagreements include disputes over whether the person is truly incapacitated, over who should serve as the guardian or the extent of the guardian’s powers. Preparation is vital for contested guardianships.
What Is Legal Guardianship?
When someone uses the term “Legal Guardianship,” they are likely explaining that Judge has found a person incapacitated and appointed for him a Guardian of the Estate or a Guardian of the Person.
How to Become a Legal Guardian
A person becomes a Guardian of the Estate or Guardian of the Person by Petitioning the Court and obtaining a determination that someone is incapacitated. The judge then appoints this person a Guardian of the Estate and or a Guardian of the Person.
Our Guardianship Lawyer would be happy to brainstorm with you about your Guardianship situation. Representing interested parties in Guardianship proceedings is something we regularly do. Feel free to set up a phone conference Contact our office for a free consultation. We try to make the process as painless as possible!
Go to Our Guardianship of A Minor Page
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If you have any questions regarding Guardianships or any other Estate Planning topics, please contact us to schedule a free consultation. At Vancouver Wills and Trusts we focus on estate law. With years of experience we will explain complex estate planning techniques clearly and concisely. We make it easy for you to understand estate planning so you can make the best decisions for yourself and your family.