Estate Planning Business Succession
Control over another person's life and money has been in the news recently and not in a good way. Conservatorships made a lot of headlines a few months ago, when singer Britney Spears contested her father's 13-year control of her finances. Kiplinger’s recent article entitled “What to Do When a Family Member Needs a Guardian” says that even Netflix portrays these legal arrangements as little more than an invitation for fraud in its 2021 movie, "I Care a Lot," which starred Rosamund Pike as a professional guardian who cheats her clients out of their life savings.
While the rules vary by state, generally when someone (a petitioner) files a petition with the court to seek guardianship of an adult, a judge holds a hearing to determine whether that person meets the state's standard for needing a guardian. A person requiring guardianship can lose important rights, including the ability to marry, travel, make certain medical decisions, possess firearms or even vote. That is why courts may be reluctant to permit an all-encompassing loss of rights. It is common for a court to limit a guardian's authority, so that it only addresses a specific area with which the person needs help—like managing bills and maintaining a home. The least intrusive option is generally preferable.
An examination by a physician is usually required to determine if the individual suffers from a medical condition that impairs judgment. However, sometimes the need for a guardian is clear -- for instance, a person who has suffered a stroke and is in a coma. Dementia is the most common reason why an adult might be declared incapacitated. Note that depression can be mistaken for dementia. Delirium, which can cause a person to be confused and unaware of their environment, is another common cause.
When a guardian is needed, courts typically appoint a family member. However, sometimes there is no one appropriate, so the court may appoint a public guardian paid by the state or occasionally a professional guardian paid with private funds.
Note that the guardian's job is to protect your loved one, not serve the family’s interests. As a result, family dynamics can be stressful because relatives believe the guardian is spending their inheritance.
A guardian must keep clear records as to how any money is spent and discuss any reimbursement for expenses, such as the time and mileage for transporting the ward to appointments, in advance.
Being a guardian should be seen as a professional job. Depending on the situation and how complicated it is, it can be a great deal of work.
Reference: Kiplinger (Jan. 25, 2022) “What to Do When a Family Member Needs a Guardian”
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