Guardianship

Question 1

Limits on compensation

Answer 1

For a guardian of the person, cannot exceed 5% of the ward’s income.

For guardian of the estate, based on a reasonableness standard and typically 5% of the ward’s income and 5% of all money paid out of the estate

Question 2

Incapacitated Adult

Answer 2

Over 18 who is substantially unable to:

1) Provide food, shelter, or clothing for herself
2) To care for her physical health
3) To manage her financial affairs

Because of mental or physical condition

Question 3

Guardian of the person

Answer 3

Right to physical possession of the ward and in charge of her daily life.

Must be an individual

Children over 12 may choose a guardian subject to court’s approval

Question 4

Standard for Guardian of the estate

Answer 4

Prudent person

Question 5

Guardian Disqualification

Answer 5

1) Incapacitated person
2) Conflict of interest
3) Convicted of sexual assault
4) Otherwise unsuitable

Proposed guardian has to prove no disqualification by a preponderance of the evidence.

Question 6

Designation of guardian of the person for a minor

Answer 6

• The last surviving parent may designate a guardian of the parent’s minor children by a signed will or written declaration, attested to by two witnesses over age 14.
• If such declaration has been left, the court must appoint the guardian, unless the court finds such guardian to be disqualified or the guardian is dead, refuses to serve, or would not serve the best interest of the children.

Question 7

Removal without a hearing

Answer 7

1) Guardian is a no-show
2) Clear and convincing evidence of mistreatment
3) Failure to comply with the appointment process

Question 8

Inventory and Creditor’s Claim

Answer 8

Within 30 days of being appointed, guardian must file list of claims and an inventory of the estate.

Within 4 months must give personal notice to secured creditors and other known creditors.

Question 9

Minor

Answer 9

Under 18 and never been married

Question 10

Letters of the guardianship

Answer 10

Official documentation explaining the guardianship and must be renewed every 16 months

Question 11

Designation of Guardian for incapacitated adults

Answer 11

1) Spouse, unless disqualified
2) Next of kin
3) Last surviving parent’s designee

Standard is best interest of the ward.

Question 12

Guardian of the estate

Answer 12

May be a corporation, handles the ward’s estate but no their will

Question 13

Finding of incapacity

Answer 13

Burden is on the person alleging the incapacity, to prove with clear and convincing evidence that 1) the person is incapacitated, 2) that it is in the best interest of the ward to appoint a guardian and 3) that the ward’s rights and property will be protected by the appointment.

Requires medical documentation of exam done within 120 days of filing. Requires more than bad judgment - repeated instances over the last 6 months showing incapacity.

Guardian will typically have to provide a bond as well.

Question 14

Avoiding Guardianship

Answer 14

• Trust
• Durable Power of Attorney
• Living Will
• Uniform Transfers to Minors Act account (default age is 21, age range is 18-21)

Question 15

Unilateral actions

Answer 15

• Renting out the ward’s property
• Pay taxes and liabilities
• Insure the ward
• Charitable gifts of up to 20% if income exceeds $25,000

Pretty much everything else requires a court order.