GUARDIANSHIP

A guardianship is a relatively expensive and time consuming process for one person to manage either the estate or the person of another person. The person managed is referred to as the "ward" and has some sort of disability such as being incapacitated or being a minor. Generally a guardian is able to make all decisions for the ward.

A guardianship can be either of the estate or of the person or both.

A guardianship of the person allows someone to make personal decisions for another person, such as medical decisions and housing decisions. A guardianship of the estate allows the other person to make financial decisions.

In order to obtain a guardianship over someone, the proposed ward must be served with the court papers. In addition, the court will appoint an attorney ad litem to represent the ward. If the ward tells the attorney ad litem that he or she wants something that the attorney ad litem believes is not in his or her best interest, then the court will appoint a guardian ad litem. In court the attorney ad litem will argue whatever it is that the proposed ward wants and the guardian ad litem will argue whatever he or she believes is in the proposed ward's best interest. In addition, to these people, the court can also appoint temporary guardians. In all, it can get very expensive very quickly. It is not unusual to have at least three appointed attorneys working in a case in addition to the attorneys hired by the applicant for the guardianship. If the proposed ward has a sufficient estate, then all of these costs will come from the estate of the ward.

Not only do these cases frequently involve parties fighting over whether or not there should be a guardian, but sometimes the fight is over who should be the guardian. They can linger for months and, in those cases, the court may appoint a temporary guardian to manage the ward's affairs until the court can sort out the rest of the situation. Of course, if the ward consents to the guardianship and there are no other fights, it will be quicker and far less expensive.

Managing a guardianship of the person is not overwhelming. An annual report needs to be filed with the court, but as long as the guardian faithfully executes his or her duties, there is not a lot of court interaction.

A guardianship of the estate, on the other hand, is much more difficult. Motions have to be filed in court for any significant transactions (there will be an allowance that will not require further court action) and an annual report must be filed that details every expenditure, expense, and receipt of the estate. It is sometimes very difficult to get these to balance. While we frequently recommend that our clients can handle the guardianship of the person by themselves, it is difficult to handle a guardianship of the estate without the services of an attorney.

The guardian, whether of the person or the estate, is referred to as a "fiduciary." That simply means that they have a higher standard of duty to the ward than they would to a normal person. In fact, they are required to put the interests of the ward ahead of their own interests. Although there are many duties a guardian owes to a ward, most of them can be summarized by saying that the guardian owes a duty of full disclosure and of putting the ward's interests ahead of his or her own interests.