If you have children or an adult you care for, it’s smart to plan ahead and name a guardian. It can offer you peace of mind knowing your loved one will receive proper care, when you cannot.
In most states, anyone can file a petition for guardianship if they believe another person is incapacitated. The court ultimately determines whether guardianship is necessary and, if so, will appoint a guardian.
Duties of a Guardian of the Person
Guardianship is the legal process where someone is appointed to care for an incapacitated person (the ward). A guardian is usually a family member or other third party.
The court can appoint a guardian if someone is not able to make their own decisions for themselves, such as making medical or living arrangements. They can also be appointed to manage the ward’s finances and property.
A guardian of the person has the responsibility to look after and protect their ward’s health and welfare, including medical care, food, clothing, shelter, education, and personal needs. They must make these decisions based on what the ward would do if they were capable of making those decisions themselves.
They must also file periodic reports with the court and keep detailed records of their spending. This information will help friends and family members check on the ward’s financial situation.
In some cases, a guardian of the person may be also appointed to manage their ward’s finances and property (guardian of the estate). This combination of roles requires guardians to work together closely and often involves transferring funds between them.
Duties of a Guardian of the Estate
A guardian of the estate is responsible for managing a ward’s finances, investments and real property. They must perform an initial appraisal and inventory of the ward’s income, assets, real property and debts, and file a complete financial accounting with the court each year.
Guardians of the estate have a fiduciary duty to protect a ward’s funds and property from being mismanaged and to use them only for their benefit. They are not allowed to sell the ward’s property or make investments that could cause their ward to lose money or value, without approval from the court.
The duties of a guardian of the estate can vary depending on the type of guardianship they are serving. These responsibilities can include paying the ward’s expenses and debts, making investments in their behalf or even collecting any debts owed by the ward.
All of these duties and responsibilities should be carefully considered and adhered to, especially when they involve the ward’s personal or financial assets. It is important to consult with an attorney before engaging in any of these activities, especially if they are being done for the first time. It is also important to be aware of the limitations that may be imposed on a guardian of the estate by the Order Appointing the Guardian.
Duties of a Guardian of the Property
Generally speaking, a Guardian of the Property will serve as a fiduciary in the best interests of the incapacitated person (or ward). As such, it is important to ensure that the property of the ward, both real and personal, is protected and controlled.
It is also important for a Guardian of the Property to prepare and file with the court an initial inventory and annual accounting within four months of the appointment of the Guardian of the Property and annually thereafter. This must include a verified inventory of all the assets and the location of each.
The Guardian of the Property has a duty to preserve and protect the ward’s assets until the ward becomes 18. A Guardian of the Property may sell, lease, encumber, exchange or otherwise dispose of any of the ward’s property upon the order of the court, for purposes of payment of the ward’s debts or support and education of the ward or the ward’s dependents.
A Guardian of the Property may also make charitable gifts, purchase and sell real estate or engage in investments. This is done by seeking and receiving approval from the court for these extraordinary transactions.
It is also important to check that the property meets the appropriate standards for fire safety and escape routes. This will usually require the landlord to provide you with a fire blanket and/ or extinguisher, and the relevant fire exit doors should be easily accessible without a key.