What is a Guardian?

by Robert Gazzola

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This article is a brief introduction to the process for the appointment of a court-appointed Guardian and the duties and responsibilities of a Guardian. I will describe what is involved in obtaining the appointment of a guardian as well as what is involved in serving as a Guardian or Conservator, and provide some guidance and advice based on my own experience.

Frequently, we encounter an older person who is unable to manage his or her affairs or care for his or her person independently. If this person has granted a Durable Power of Attorney to someone he or she trusts, this situation can be handled relatively simply. However, in the absence of a Power of Attorney and if the individual lacks the capacity to grant one, decision-making authority for such an incapacitated person may be obtained by applying to a court for the appointment of a Guardian or Conservator.

Each jurisdiction uses its own terminology for guardianship proceedings. For example, some states use the term "guardian," as in guardian of the person (for personal and health care decision-making authority) and guardian of the property or conservator (for control of property).

The guardianship process is usually initiated by the filing of a petition with the Court requesting the appointment of a Guardian. This petition is usually filed by a concerned relative or friend, or other interested party or organization such as a hospital, nursing home, or social service agency.

The Court will usually appoint an attorney to represent the proposed ward or an attorney to independently investigate the facts and advise the Court. A hearing will be held and the Court will hear the testimony of the persons involved. If warranted, the Court will appoint a Guardian or dismiss the petition because the Court has determined that a Guardian is not needed. A guardianship may be limited or unlimited. For example, the Court may restrict a Guardian's authority so that to do certain things (such as moving the individual from his or her home to a nursing home or to sell the individual's home) would require specific Court approval and authority.

Assuming you have been appointed by a Court as Guardian and/or Conservator of an elderly, incapacitated person, what do you do? How do you do it?

First and foremost, you do whatever you do carefully and with thought and consideration for the person for whom you are caring. Review the local rules and laws to determine your duties and obligations and consider obtaining the advice of an attorney who specializes in this area of the law.

A Guardian or Conservator must file reports to the Court. For example, initially an 'inventory' must be filed listing all of the individiual's assets. Usually annually, an 'accounting' must be filed listing in detail what income you received, what expenses you incurred, and the balance remaining. The 'accounting' must be supported by canceled checks and bank/investment statements and is then audited by court personnel and hopefully approved.

Once you have gained control of the assets of the individual and arranged for the payment of his or her bills, you must address his or her care and living arrangements. This is usually the most difficult and demanding aspect of serving as a Guardian.

Frequently, this is determined by the assets of the individual. If the individual's health is such that he or she can be maintained in his or her home, are there sufficient funds to cover the costs? If not, alternative living arrangements must be examined and their costs assessed. It is extremely important to involve medical personnel and social workers in this decision-making process and to consult with and involve the individual concerned as much as possible. Avoid the tendency to assume you know what is best for the individual and to act without consulting or advising the individual. Many problems can be avoided by so doing. Even an incapacitated person can have moments of clarity in which they can express their first choice.

If the individual has limited means and his or her needs will require placement in a nursing home, then the Guardian should immediately seek out and choose an appropriate nursing home while funds are available. Some nursing homes accept initial Medicaid applicants, but have a limited number of beds allocated to Medicaid, and some do not accept Medicaid. By being a self-paying resident initially and later applying for Medicaid, you can avoid these problems and broaden your choices for acceptance by a nursing home of your choice.

Funeral plans are another consideration. If the individual has not made prior arrangements, you should consider using some of his or her funds to pre-purchase a funeral before the funds are exhausted and a Medicaid application is filed. A final bit of advice is to try to keep open lines of communication between you, as the Guardian, and the Ward and his or her friends and relatives. This avoids misconceptions of your actions or motives. Frequently, these misconceptions, if not promptly corrected, result in unwarranted complaints being filed with the Court and the time and expense of responding to them.

10/19/98

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Bob Gazzola is a principal in the law firm of Quinn, Racusin & Gazzola Chartered, 1400 K Street, N.W., Suite 1010, Washington, D.C. 20005-2403, Phone No. 202-842-9300, Fax No. 202-682-0148, and practices guardianship and conservatorship law in the District of Columbia, Maryland and Virginia, as well as estate planning and probate law.

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