Fong Law Group

Claiming the Guardianship of an Elderly Parent

Often an aging parent will lose their ability to think clearly or make informed decisions about their life. This may occur because of dementia, mental illness, stroke, brain injury, or other severe health or disability conditions. Your parent may or may not have prepared for their elder years with a durable financial and medical power of attorney. If not, a guardianship may be necessary to protect their best interests.

When There Is No Durable Power of Attorney

If your parent did not prepare for a loss of capacity and the need for legally recognized help, you will not be allowed to create these documents once they are already mentally impaired. With that moment lost, claiming the guardianship of an elderly parent is a process that requires court approval. This ensures that the protections moving forward represent the best interest of the aging adult.

Medical Requirements for Guardianship

When a parent does not have an estate plan with powers of attorney, they may bristle at the mere mention of requiring a guardian. Your first step is to obtain a doctor’s letter or physician’s certificate attesting to your parent’s physical abilities and mental acuities.

Suppose you meet with resistance to having your parent willingly submit to an evaluation. In that case, you may still apply for guardianship with the court. This may then compel your parent to submit to a court-ordered independent medical examination.

When Is it Time to Step in and File to Be a Legal Guardian?

Over time, you may begin to recognize certain signs that having a guardian may be necessary for your older parent. This might include lapses in bill payments, lack of healthy foods in their home, or your parent’s insistence they can drive after a series of accidents. Driving is imperative to monitor because your parent endangers not just themselves but others. Additional signs it may be time for guardianship include self-isolation, hearing or sight loss, and general forgetfulness, which can lead to injury around stoves, stairs, and other risks.

To file for guardianship, you would apply with the clerk of the superior court; this is a fairly standard procedure. However, by state, there are nuances and differences in law and process.

If possible, have your parent undergo a medical examination before applying; if not, the court can order one later. The court will begin legal guardianship proceedings to determine whether you are fit to be their guardian. This process generally involves assessing any existing conflict of interest, financial responsibility, and even a criminal background check.

Notifying Your Parent and Family of the Proceedings

With the application on file and awaiting court approval, you must notify your parent, the proposed ward, of the application. This notification is a legal requirement and can sometimes create family conflict.

A parent’s frantic contact with other family members upon receiving the guardianship documentation is not uncommon. Notifying these family members or others with a right to know is not only a legal requirement but also best discussed before filing. Having family on board to protect your parent with guardianship is best when you mutually agree.

Your Parent’s Right to Representation

The court will appoint an attorney ad litem to represent your parent. This person will legally advocate on your parent’s behalf, representing their needs. The court may also appoint a guardian ad litem, who may not necessarily be a lawyer, to represent the interests of a parent who may be unable to care for themselves.

Typically, court hearings occur between 15 and 30 days from the respondent (your parent) being provided the filing for guardianship. It may take longer if the court requests a multidisciplinary evaluation. In this instance, the clerk of the court may appoint an interim guardian whose powers include addressing the respondent’s immediate needs.

A Multidisciplinary Evaluation (MDE)

A thorough evaluation may include medical, psychological, daily life skills, education, social work, and vocational rehabilitation needs of your parent, the respondent. With an aging parent, the focus tends to remain on medical, psychological, and daily life skill assessments.

After a full assessment of your parent’s unique situation and your application to become a guardian, the court will decide based on the best interests of your parent. Your parent may pursue a process to appeal the decision. They generally must file this in writing within 10 days of the court’s decision. The appeal will prompt a new hearing before a superior court judge.

Guardianship Laws Vary By State

When applying for guardianship, it is crucial to understand the state laws where you live. Different states use different terms.

Some states require a “guardian” to control your parent’s home environment, health care, and day-to-day needs. In other states, a “conservator” makes financial decisions, such as paying bills and budgeting. Still others will use either of these terms to mean the same thing.

The process can take substantial time and money, particularly if family members disagree. Many states give preference to the ward’s spouse, adult children, and other family members, as they know the aging parent and their needs the best.

The court may also appoint a professional guardian. All guardians appointed by the court are entitled to reasonable compensation, although family members or friends typically will not charge for the service. Compensation for guardians must have court approval.

If the court determines you will serve as your parent’s legal guardian, it will state this in a written court order. You will remain their guardian until:

• your parent dies,
• the court finds your parent has regained capacity,
• you die, or
• the court finds it is in the ward’s best interest to remove you as the guardian or conservator.

Your parent may need your help because of advanced age, a disability, or an illness. However, they may have not appointed a durable power of attorney for health care or finances. Becoming their guardian may be the best option. This will give you the authority to make decisions about medical care, finances, or other needs on their behalf.

Contact your elder law attorney to establish guardianship for your aging parent. They can guide you through applying to become a guardian or conservator. They also can help manage your expectations regarding the best care for your parent.

Notarizing Documents for Seniors With a Dementia Diagnosis

An Alzheimer’s or dementia diagnosis can be a challenging journey for the person and family alike. When the diagnosis occurs, a ticking clock begins on the timeline for getting proper and sound notarizations done for crucial legal documents.

What Does It Mean to Get a Document Notarized?

According to the National Notary Association, having a document notarized is a process that ensures the document is authentic. The Notary serves as an impartial screener who confirms the identity, willingness, and awareness of the person signing the document.

There are vital issues and implications to be aware of when having documents notarized for individuals with dementia.

Notarizing for a Person With Dementia: A Legal Gray Area

Having documents notarized for seniors with dementia leads to some legal gray areas. There are no laws that prohibit having documents notarized for individuals with cognitive impairments. However, the role of a Notary Public extends beyond the procedural formalities.

Notarizing documents for anyone who is cognitively impaired also comes with a dramatically increased risk for both fraud and elder abuse. This is an issue that Notaries are highly aware of and protect against.

Notaries must assess whether their document signers understand and are aware of the nature of the documents, their contents, and their details. They also must verify the signer’s identity.

Notaries must screen each signer to ensure they are signing the document willingly. The signer cannot be under the pressure or direction of any third party.

The Notary will refuse to notarize a document if they find that any of these conditions fail to meet the standard.

It’s critical for families to act ethically and responsibly in notarizing important documents for their aging loved ones with dementia. If your loved one is facing a dementia diagnosis, establish legal clarity as soon as possible to avoid uncertainties later.

How to Prep When Having Documents Notarized

The following tips will help you prepare:

• Make sure the Notary visits the signer at a time when they are cognitively aware.
• Arrange for the signer to meet privately with the Notary.
• Confirm what type of notarization you need on specific legal documents. If you need anything clarified, check with your attorney or the document recipient.
• Ensure the signer is prepared to present their identification. They also must be able to sign the document, if necessary, as well as the Notary’s record book. Some states also require a fingerprint impression.
• Ensure there are no blank spaces or dates on the documents. To combat fraud, a Notary will refuse to notarize if required entries are blank.

Legal Documents to Have Notarized for Dementia Diagnosis

Certain legal documents, more commonly notarized for seniors, serve the person’s wishes and protect them from undue influence. Those documents include the following:

Power of Attorney (General vs. Durable)

A power of attorney grants authority to a trusted individual to make financial and legal decisions on behalf of someone else. A general power of attorney is effective immediately. In contrast, a durable power of attorney remains in effect even if the signer becomes unable to handle their affairs.

Health Care Power of Attorney

This document designates a representative to make medical decisions when the individual is unable to do so. You may also hear it referred to as a health care proxy. Notarizing it ensures that all parties will respect the signer’s health care preferences.

Living Will

A living will outlines end-of-life medical preferences. Having it notarized provides assurance that medical choices align with the signer’s wishes.

Guardianship/Conservatorship

In cases where dementia has advanced significantly, establishing a legal guardian or conservator for your loved one. In securing notarized documents, you can ensure that the guardian responsibly manages your loved one’s financial and personal affairs.

Will or Trust

Notarizing a will or trust guarantees the proper distribution of assets after your loved one’s passing, minimizing potential disputes.

HIPAA Release Form

A HIPAA release form grants specific individuals access to the signer’s medical information, aiding health care decisions.

Financial Account Designations

You may also want to ensure that all parties will handle your loved one’s financial matters according to their preferences. To do this, you can work with a Notary to notarize designations on your loved one’s financial accounts.

Act Before It’s Too Late

The absence of specific laws surrounding notarial acts and dementia highlights the importance of being proactive. Waiting until the last moment to have something notarized may lead to legal difficulties or disputes.

As soon as you receive confirmation of your loved one’s dementia diagnosis, initiate the process of having key legal documents notarized. It’s essential you do this while your loved one can still articulate their wishes. This way, you can help protect them while reducing potential family conflicts.

How Do I File for a Guardianship?

No one wants to see a loved one become unable to make decisions for him or herself. If this happens, however, the court may appoint a substitute decision maker, often called a "guardian," but in some states called a "conservator" or other term. A guardian is only appointed as a last resort if other, less restrictive, alternatives, such as a power of attorney, are not in place or are not working.

In most states, anyone interested in the well-being of an individual who may be incapacitated – called the “proposed ward” -- can request a guardianship for that person (also called a "conservatorship" in some states). An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward's county of residence. Protections for the proposed ward vary greatly from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward's presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person cannot afford a lawyer.

At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

A guardian can be any competent adult -- the ward's spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). An individual may nominate in advance the person they would like to serve as their guardian by executing a durable power of attorney while they are still competent to do so.

The guardian need not be a person at all -- it can be a non-profit agency or a public or private corporation. If a person is found to be incapacitated and a suitable guardian cannot be identified, courts in many states can appoint a public guardian, which is a publicly financed agency that serves this purpose.

In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward's life -- people who are both aware of and sensitive to the ward's needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.

Britney Spears Case Puts Renewed Focus on Guardianships and Less Restrictive Alternatives

Britney Spears’s legal fight to wrest back control over her personal and financial affairs has flooded the issue of guardianship in Klieg lights. While a full guardianship may be necessary for many individuals who are incapable of managing their own affairs due to dementia or intellectual, developmental or mental health disabilities, the Spears case underlines the option of more limited alternatives.

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions, the court will appoint a substitute decision maker, usually called a "guardian" or a "conservator," depending on the state.

Guardianship is a legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward"). The guardian can be authorized to make legal, financial, and health care decisions for the ward. The National Center for State Courts says that about 1.3 million adults are living under guardianships or conservatorships with some $50 billion in assets.

The standard under which a person is deemed to require a guardian differs from state to state, and because guardianships are subject to state law, data on them is hard to collect and protections against abuse vary widely.  Netflix’s popular movie, I Care a Lot, spotlighted some weaknesses in the guardianship system that make it possible for an unscrupulous guardian to take control of an elderly person’s life and bleed their resources dry. 

The Spears Case: An Unusual Situation

Britney Spears has been under a court-ordered conservatorship that has controlled her career and finances since 2008. Her father, Jamie Spears, was appointed her temporary conservator when the pop singer was allegedly struggling with mental health issues and had been hospitalized, and a Los Angeles court later made the conservatorship permanent.

On July 14, a Los Angeles judge approved the resignation of Spears’s court-appointed lawyer and granted her request to hire her own lawyer. The 39-year-old singer told the judge that she wants to end the long-running conservatorship that put her father in charge of her estimated $60 million fortune and business affairs, and others in control of such personal decisions as whether she can marry and have a baby. "I'm here to get rid of my dad and charge him with conservatorship abuse," she said.

Whatever the merits of this controversial case, what makes Spears's situation so unusual is the fact that she does not appear to be incompetent, at least when it comes to her professional accomplishments. In the 13 years since the conservatorship was put in place, she has continued her career as a pop star, earning millions from a four-year concert residency act in Las Vegas and serving as a judge on the television reality show “The X Factor.”

Another anomaly is the fact that until now Spears was represented by a court-appointed attorney who, she argued, did not represent her wishes or interests. However, while the media has given wide coverage to Spears’s side of the dispute, we have heard almost nothing from the professionals handling her affairs, who are constrained from publicly disclosing confidential information.

It’s easy to see why conservatorship, which takes away a person’s right to make decisions about significant aspects of his own life, is considered among the most restrictive legal remedies in the American judicial system. For this reason, courts are legally required to seek alternatives that will safeguard the ward’s finances and wellbeing but with the fewest restrictions, in an effort to protect that person’s rights.

Protections Without Total Loss of Control

In the case of an elderly person who may no longer be able to handle some or all of her own affairs, there are various approaches that provide protection without stripping that person of control over all decisions, as in Spears’s case.

Many people in need of help can make responsible decisions in some areas of their lives but not others (such as making major financial decisions). Families might consider setting up what’s called a “limited guardianship.” Most states allow judges to appoint guardians with limited powers that are specifically tailored to the alleged incapacitated person's needs. For example, a court can appoint a guardian to oversee a person's housing and health care, but not to manage the person's bathing, eating, and socialization. Conservators can be appointed to handle the financial affairs of someone who is not good with money, without having any power to manage health care decision making—the options are almost infinite.

Alternatives to Guardianship

Sometimes, guardianship isn't the answer at all. If a person can execute estate planning documents, she can also sign a durable power of attorney and a health care proxy, which allows someone to assist her with decisions without court involvement. "Supported decision making" is a growing alternative to guardianship in which trusted advisors like family, friends or professionals assist in making decisions, although the individual retains the ultimate right to make their own decisions.

Trying an alternative to guardianship can be important for several reasons. First, it prevents a court from ruling that someone is "incapacitated," which carries with it a stigma and can be hard to undo, as Britney Spears is finding. Second, it puts the person in the driver's seat. Third, it is much less expensive and time-consuming.

Another option is a revocable or "living" trust that can be set up to hold an older person's assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

Experts say that Britney Spears faces a long, difficult path if she seeks to terminate her conservatorship. She would need to file a formal petition, which would require presenting evidence in hearings and depositions. She could face objections at every stage from attorneys representing her father and others involved in her care. (Spears has indicated her unwillingness to submit to a mental evaluation or test in her effort to end the conservatorship.)

If you have questions about what type of guardianship may be right for your family member, or if you are currently under guardianship and are looking to gain control of your affairs, talk to your elder law attorney today.

For an article on what may lie ahead in the Britney Spears case, click here.

For an article by University of Virginia Family Law Professor Naomi Cahn on how guardianships can lead to abuse, click here.

The Film 'I Care a Lot' Highlights Vulnerabilities in the Guardianship System

Netflix’s popular new movie, I Care a Lot, may be far-fetched in a lot of ways, but it does highlight some real weaknesses in the guardianship system that make it possible for an unscrupulous guardian to take control of an elderly person’s life and bleed their resources dry. Fortunately, steps can be taken to avoid the guardianship system and the kind of nightmare the film portrays. 

A guardian is someone appointed by a court to make decisions on behalf of an incapacitated individual ("ward"). The guardianship process usually starts when a family member or social worker notifies the court that someone can't take care of him- or herself. The court often appoints a family member as guardian. However, if the family can't agree on a guardian or there is no family to act as guardian, the court may appoint a public guardian. Public guardians are supposedly neutral individuals who are hired to act in the ward's best interest.

I Care a Lot follows one such public guardian who exploits the system to gain control of her wards’ estates. The guardian, Marla Grayson, typically petitions for an “emergency guardianship” without notifying the ward. In the case that takes up most of the film, Marla appears on the doorstep of a very surprised Jennifer Peterson with a court order declaring Peterson incompetent (she is nothing of the sort) and forcing her to relocate to a long-term care facility. Marla has already arranged for Jennifer’s doctor to declare Jennifer incompetent, and Marla also has a deal with a long-term care provider to admit Jennifer to his facility. And because it is an emergency guardianship, Jennifer is not required to be notified to appear in court to defend herself. 

Then, without Jennifer’s knowledge or consent, Marla takes control of her life and finances. After Jennifer is moved to the care facility, Marla begins the process of selling her house and belongings and taking a generous cut of the proceeds. From there, the movie takes a lot of twists and turns that we won’t reveal here, but the starting premise is unfortunately not Hollywood fantasy.

The film’s premise is in fact quite similar to a real-life case involving Nevada public guardian April Parks. As guardian for hundreds of wards, Ms. Parks, took over their lives, sold their belongings, and charged their estates hundreds of dollars an hour while doing so. Over her 12 years as a public guardian, Ms. Parks built relationships with hospitals and medical providers to refer patients to her and found doctors who were willing to declare her targets incompetent. Families often found out too late that their loved one was under guardianship and beyond their legal control. 

Ms. Parks is clearly at the far end of guardianship exploitation and has been sentenced to 16 to 40 years in prison, but there are other unscrupulous guardians still exploiting the system. Unfortunately, in many states, the lack of court oversight combined with poorly trained guardians leads to abuse. Courts often do not have the resources necessary to provide proper oversight, and only a small minority of states certify their professional guardians. 

Not all states are equally vulnerable to guardianship exploitation. For example, New York’s guardianship system requires that an independent evaluator meet with the ward before an incapacitation hearing. And Arizona requires that its professional guardians be licensed through the state and that the ward have an attorney present during the incapacitation hearing, among other protections. Florida’s governor signed a law in 2019 requiring guardians to report details of payments, among other things. Nevada has also enacted a number of reforms, including requiring that individuals subject to guardianship be represented by an attorney. And in a rare display of bipartisanship, Congress passed a bill in 2017 that empowers federal officials to investigate and prosecute unscrupulous guardians and conservators appointed by state courts. 

While some states have begun passing reforms, there is more to be done. The Unform Law Commission, which provides states with model legislation, has proposed the Uniform Guardianship, Conservatorship, and Other Protective Arrangement Act (UGCOPAA).   The law would allow a court to order a protective arrangement rather than a full guardianship when appropriate, require that notice of the guardianship be sent to family, and prevent the guardian from barring family members from visiting the ward, among other things. So far only Washington and Maine have enacted the model law. 

Regardless of your state’s laws, the best approach is to avoid the need for guardianship and conservatorship entirely by putting durable powers of attorney and health care proxies in place ahead of time when you can choose the person you would like to make decisions for you when necessary. Even if you're not at risk of exploitation because your children or grandchildren would step in, the need for court intervention causes otherwise unnecessary expense and delay.

The Ins and Outs of Guardianship and Conservatorship

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions, the court will appoint a substitute decision maker, usually called a "guardian," but called a "conservator" or another term in some states.

Guardianship is a legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward"). The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a "conservator."

Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision making power over only those areas in which the incapacitated person is unable to make responsible decisions (a so-called "limited guardianship"). In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian.

Incapacity

The standard under which a person is deemed to require a guardian differs from state to state. In some states the standards are different, depending on whether a complete guardianship or a conservatorship over finances only is being sought. Generally, a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

Process

In most states, anyone interested in the proposed ward's well-being can request a guardianship. An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward's county of residence. Protections for the proposed ward vary greatly from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward's presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person cannot afford a lawyer.

At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

A guardian can be any competent adult -- the ward's spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian.

The guardian need not be a person at all -- it can be a non-profit agency or a public or private corporation. If a person is found to be incapacitated and a suitable guardian cannot be found, courts in many states can appoint a public guardian, a publicly financed agency that serves this purpose. In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward's life -- people who are both aware of and sensitive to the ward's needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.

Reporting Requirements

Courts often give guardians broad authority to manage the ward's affairs. In addition to lacking the power to decide how money is spent or managed, where to live and what medical care he or she should receive, wards also may not have the right to vote, marry or divorce, or carry a driver's license. Guardians are expected to act in the best interests of the ward, but given the guardian's often broad authority, there is the potential for abuse. For this reason, courts hold guardians accountable for their actions to ensure that they don't take advantage of or neglect the ward.

The guardian of the property inventories the ward's property, invests the ward's funds so that they can be used for the ward's support, and files regular, detailed reports with the court. A guardian of the property also must obtain court approval for certain financial transactions. Guardians must file an annual account of how they have handled the ward's finances. In some states guardians must also give an annual report on the ward's status. Guardians must offer proof that they made adequate residential arrangements for the ward, that they provided sufficient health care and treatment services, and that they made available educational and training programs, as needed. Guardians who cannot prove that they have adequately cared for the ward may be removed and replaced by another guardian.

Alternatives to Guardianship

Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and proven to be ineffective. Less restrictive alternatives that should be considered before pursuing guardianship include:

• Power of Attorney. A power of attorney is the grant of legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial, business or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until he or she becomes incapacitated. 
• Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans' Administration, Railroad Retirement, welfare or other state or federal benefits or entitlement program payments on behalf of an individual.
• Conservatorship. In some states this proceeding can be voluntary, where the person needing assistance with finances petitions the probate court to appoint a specific person (the conservator) to manage his or her financial affairs. The court must determine that the conservatee is unable to manage his or her own financial affairs, but nevertheless has the capacity to make the decision to have a conservator appointed to handle his or her affairs.
• Revocable trust. A revocable or "living" trust can be set up to hold an older person's assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

Contact your attorney to discuss ways to protect against a guardianship.

What to Do If You Are Appointed Guardian of an Older Adult

Being appointed guardian of a loved one is a serious responsibility. As guardian, you are in charge of your loved one's well-being and you have a duty to act in his or her best interest.  

If an adult becomes mentally incapacitated and is incapable of making responsible decisions, the court will appoint a substitute decision maker, often called a "guardian," but in some states called a "conservator" or other term. Guardianship is a legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward").

If you have been appointed guardian, the following are things you need to know:

• Read the court order. The court appoints the guardian and sets up your powers and duties. You can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, you may or may not have to seek court approval for various decisions. If you aren't sure what you are allowed to do, consult with a lawyer in your state. 
• Fiduciary duty. You have what's called a "fiduciary duty” to your ward, which is an extremely high standard. You are legally required to act in the best interest of your ward at all times and manage your ward's money and property carefully. With that in mind, it is imperative that you keep your finances separate from your ward's finances. In addition, you should never use the ward's money to give (or lend) money to someone else or for someone else's benefit (or your own benefit) without approval of the court. Finally, as part of your fiduciary duty you must maintain good records of everything you receive or spend. Keep all your receipts and a detailed list of what the ward's money was spent on. 
• File reports on time. The court order should specify what reports you are required to file. The first report is usually an inventory of the ward's property. You then may have to file yearly accountings with the court detailing what you spent and received on behalf of the ward. Finally, after the ward dies or the guardianship ends, you will need to file a final accounting. 
• Consult the ward. As much as possible you should include the ward in your decision-making. Communicate what you are doing and try to determine what your ward would like done. 
• Don't limit social interaction. Guardians should not limit a ward's interaction with family and friends unless it would cause the ward substantial harm. Some states have laws in place requiring the guardian to allow the ward to communicate with loved ones. Social interaction is usually beneficial to an individual's well-being and sense of self-worth. If the ward has to move, try to keep the ward near loved ones.  

For a detailed guide from the Consumer Financial Protection Bureau on being a guardian, click here. 

Kids Grown Up? Protect Them with These Three Documents 子女都長大了？用這三份文件來保護他們 (中英對照)

“As a parent, you might not fully appreciate that when your child turns 18 years of age, at least in the eyes of the law, you no longer have certain inherent rights related to medical and financial details about your adult child.”

Without the right documents in place, you do not have the legal right to protect your own children, once they turn 18, says The National Law Review in an unsettling but must-read article titled “Three Critical Legal Documents Every Parent Should Get in Place Now to Safeguard Their Adult Children.”

There are only three documents and they are fairly straightforward. There is no reason not to have them in place. If your adult child was incapacitated by an accident or an illness, you would want to speak with the medical staff to find out how they are and what decisions need to be made. Whether you were making a phone call or arriving at the hospital, a nurse or doctor would not be permitted to speak with you about your own adult child’s condition or be involved with making any medical decisions.

It sounds unreasonable, and perhaps it is, but that is the law. There are steps you can take to ensure that you are not in this situation.

HIPAA Authorization Form gives you the authority to speak with healthcare providers. This is a federal law (Health Insurance Portability and Accountability Act of 1996) that safeguards who can access an adult’s private health data. HIPAA prevents healthcare providers from revealing any information to you or anyone else about a patient’s status. The practitioners could face severe penalties for violating HIPAA.

This is why you want to have a HIPAA authorization signed by your adult child and naming you as an authorized recipient.  This will give you the ability to ask for and receive information about your child’s health status, progress and treatment. This is especially important, if your child is unconscious or in an unresponsive state. The alternative? Going to court. That’s not what you want to be doing during a health emergency.

A Healthcare Power of Attorney needs to be in place, so you can be named his or her “medical agent” and have the ability to view their medical records and make informed decisions on their behalf. Without this (or a court-appointed guardianship), healthcare decisions will be in the hands of healthcare providers only. That’s not a bad thing, if you implicitly trust your child’s doctor. However, if your child is incapacitated in an out-of-town hospital with healthcare providers you don’t know, you will want to be able to make decisions on his or her behalf.

Note that physicians prefer a single medical agent, not a handful. The concern is that if time is a critical factor and a group of family members do not agree on care, it may compromise the healthcare services that can be provided. You can name multiple agents in priority order. A mother might be listed as the medical agent, and if she is unable or unwilling to serve, the second person would be the father.

The third document is a General Power of Attorney. This would give you the right to make financial decisions on your child’s behalf, if they were to become incapacitated. You would have the legal right to manage bank accounts, pay bills, sign tax returns, apply for government benefits, break or apply a lease and conduct activities on behalf of your child. Without this document, you won’t be able to help your child without a court-appointed conservatorship.

Keep in mind that these documents need to be updated every few years. If you try to use an older document, the bank or hospital may not accept them. Your adult child also has the ability to revoke these documents at any time, just by saying they revoke them or by putting it in writing. If you have an adult child living out of state, you want to have these documents prepared for your home state and their state of residence.

Finally, this is not a time to download forms and hope for the best. An estate planning attorney will know more specifically what forms are used in your state and help you make sure that they are prepared correctly.

Reference: The National Law Review (Feb. 11, 2019) “Three Critical Legal Documents Every Parent Should Get in Place Now to Safeguard Their Adult Children”

“作為父母，您可能不會完全明白，當您的子女年滿18歲時，您不再擁有您的成年子女有關醫療和財務的某些固有權利。但這是法律。”

沒有正確的文件，一旦他們年滿18歲，你就沒有合法權利去保護自己的子女，The National Law Review在一篇令人不安但必讀的文章中寫道：“Three Critical Legal Documents Every Parent Should Get in Place Now to Safeguard Their Adult Children.”

有三份相當簡單的文件你沒有理由不擁有。如果您的成年子女因意外或疾病而喪失能力，您可能希望與醫務人員交談，了解他們的狀況，以及要怎樣作出醫療決定。無論您是打電話還是直接到醫院，你都不被允許護士或醫生與您談論您的成年子女的病情或做出任何醫療決定。

這聽起來很不合理，但這就是法律。您可以採取一些措施來確保您不會遇到這種情況。

HIPAA授權表格授權您與醫療人員交談。這是一項聯邦法律(Health Insurance Portability and Accountability Act of 1996），規定誰可以取得私人醫療記錄。 HIPAA防止提供醫療服務的人向您或其他任何人透露有關患者的情況。違反HIPAA的人可能會面臨嚴厲的處罰。

這就是為什麼您希望獲得您成年子女的HIPAA授權，並將您命名為代理人。這將使您能夠取得有關您子女的健康狀況，進展和治療的信息。如果您的子女失去意識或處於無反應狀態，這一點尤為重要。替代方案？去法院。但這不是在緊急情況下你想做的事情。

醫療授權書需要到位，因此您可以被命名為他們的“醫療代理人”，以便可以查看他們的醫療記錄並且代表他們做出明智的決定。如果沒有這文件（或法院指定的監護權），醫療決定將由提供醫療服務的人負責。如果你信任你子女的醫生，這不是一件壞事。但是，如果您的子女在外地的醫院失去自理能力而那些提供醫療服務的人您並不認識，那您便希望可代表他們做決定。

請注意，醫生較喜歡單一的醫療代理，而不是多個。主要是因為如果時間是一個關鍵因素，而有些家庭成員不同意護理，便可能會影響醫療服務。您可以按優先次序命名多個代理。母親可被列為醫療代理人，如果她不能或不願意，第二個人可以是父親。

第三份文件是財務授權書。這將使您有權代表您的子女做出財務決定，如果他們失去自理能力。您將擁有管理銀行賬戶，支付賬單，簽署納稅申報表，申請政府福利，中斷或申請租賃以及代表您子女行事的合法權利。沒有這份文件，除非有法院指定的監管權，您將無法幫助您的子女。

請記住，這些文件需要每隔幾年更新一次。如果您嘗試使用較舊的文件，銀行或醫院可能不會接受。您的成年子女也可以隨時撤銷這些文件，只需說明他們撤銷這些文件或將其寫下。如果您的成年子女居住在外州，您希望在您的老家及他們所居住的州備好這些文件。

最後，現在不是下載表格和希望好事發生的時候。資產規劃律師將更具體地了解您所在州使用的表格，並幫助您確保這些文件是准確的。

參考: The National Law Review (Feb. 11, 2019) “Three Critical Legal Documents Every Parent Should Get in Place Now to Safeguard Their Adult Children”

Are There Alternatives to Guardianship and Conservatorship?

“Both the guardianship and conservatorship can also take away a person’s right to bring and defend actions in court. There are several other, less intrusive ways to act on behalf of someone with diminished mental or physical capacity.”

Guardianships and conservatorships are used when family members no longer believe their loved ones are able to make decisions or when they are physically incapacitated. A guardianship takes away a person’s right to consent to medical treatment, establish a residence, sign a contract or even to marry. A conservatorship lets the appointee manage their ward’s finances and assets, buy and sell businesses and enter into commercial transactions.

Are there other, less intrusive ways you can act on behalf of someone with diminished mental or physical capabilities? The article “Alternatives to guardianship and conservatorship,” from On Common Ground News, offers some different approaches.

One is a petition for a temporary medical consent guardian. Based on the facts in the petition, the court can determine whether there is cause, to believe the proposed medical consent ward needs a temporary medical consent guardian immediately. This occurs after all the preliminary steps have been taken, which includes a hearing. That temporary guardianship terminates, when either the court removes it, if a permanent guardian is appointed, when the hospitalization or stay in another healthcare facility ends or sixty days after the appointment is made.

An alternative option to conservatorship is the Durable Power of Attorney (DPA), which permits a competent individual to name another person as their legal representative regarding finances and other matters. There can be specific instructions, and this also can include an agent who is named to make health care decisions. A DPA is broader in power than a living will and applies any time the individual becomes incapable of either making or communicating health care decisions on their own behalf.

If you are a resident of Georgia, the state’s Advance Directives for Health Care combines the living will and health care power of attorney into one document. This gives instructions regarding how the person wants medical decisions to be made. Note that every state has its own laws and processes for these documents.

A Special Needs Trust (SNT) is a trust that can be established for a person with a disability and the assets can be used in specific ways. This kind of trust permits a person with a disability to have access to funds that might make them ineligible for certain types of programs funded by the state or federal government. The SNT allows for much more flexibility than a conservatorship and should be considered for a special needs individual first.

There are many different tools to achieve goals in the estate planning attorneys’ tool box. An in-person meeting with an experienced estate planning attorney is the best means of exploring what tools are available and appropriate to your family’s situation.

Reference: On Common Ground News (Nov. 29, 2018) “Alternatives to guardianship and conservatorship”

Don’t Fall Prey to These Estate Planning Myths 不要成為這些資產規劃謠傳的犧牲品 (中英對照)

“Estate planning myths can make an already complex process, even more complicated.”

Most people think that wills are a “one and done” sort of document. However, tax laws change and so do family dynamics. People who have minor children, really need to make sure that their will includes the naming of a guardian, as well as a trustee to manage assets on the children’s behalf. Just because you have a will, advises the Cleveland Jewish News in the article “Estate planning myths common, but debunkable,” doesn’t mean your work is done.

One common myth is that a trust is completely creditor protected. While there are some trusts that achieve this goal, there are many that don’t.

Another myth is that once an estate plan is completed, there’s no need to revisit or make changes.

Perhaps the biggest myth around estate plans, is that they are only needed by wealthy people. Actually, everyone needs a will.

People chat with their friends and neighbors and pick up snippets of information, which is usually incorrect. As with any kind of story, once a piece of information has moved through a few different people, it becomes confusing, even if it started out accurate.

Unless it comes from an estate planning attorney, don’t get any legal advice at a neighborhood or family gathering. The results can be disastrous.

If you think having a trust alone is enough to prevent your heirs from having to pay any taxes, your kids will be in for a big and expensive mistake.

If you don’t set up guardianship for your minor children, then the court will appoint a guardian. It’s entirely possible that it may be a person you would never have wanted to raise your children. If a separate financial trustee is not named, there won’t be any checks and balances on how the money left for your children is spent.

If you don’t have an estate plan in place, and especially if your family includes minor children, make an appointment to speak with an estate planning attorney soon. They’ll talk with you about your family, your hopes for what would happen if you should pass and create a series of legal documents that will protect you, while you are living (like a power of attorney and a medical power of attorney) and after you have passed.

Don’t let the myths keep you from planning for the future and protecting your family.

Reference: Cleveland Jewish News (Sep. 20, 2018) “Estate planning myths common, but debunkable”

“資產規劃謠言可以使一個已經很複雜的過程更複雜。”

大多數人認為遺囑是一種“一勞永逸”的文件。但是，稅法改變，家庭改變。有未成年子女的人，確實需要確保他們的遺囑包括監護人的命名，以及代表子女管理資產的受託人。在Cleveland Jewish News的文章中“Estate planning myths common, but debunkable,” 說僅僅因為你有遺囑，並不意味著你的工作已經完成。

一個常見的誤解是信託完全可避免債權人的追討。雖然有一些信託是可以達到這個目標，但有許多信託並不可以。

另一個謠言是，一旦資產計劃完成，就沒有必要重新審視或做出改變。

也許關於資產計劃的最大謠傳是，只有富人才需要。實際上，每個人都需要。

人們與他們的朋友和鄰居聊天，並獲得零碎信息，這通常是不正確的。跟其他故事一樣，一旦信息通過不同的人傳開，即使開始是準確，後來也會變得混亂。

除非是來自資產規劃律師，否則不要在鄰里或家庭聚會上接納任何法律建議。結果可會是嚴重的。

如果你認為只有信託便可以防止你的繼承人支付任何稅款，那麼你的子女將會遇到一個重大而又昂貴的錯誤。

如果您沒有為未成年子女設立監護權，那麼法院將指定一名監護人。他完全有可能是一個你永遠不想撫養你子女的人。如果未有指定財務受託人，則不會對您的子女留下的資金進行任何制衡。

如果您沒有資產計劃，特別是如果您的家中有未成年子女，請盡快與資產規劃律師聯繫。他們會和你談談你的家庭，你的意願及制定一系列法律文件(如授權書和醫療授權書）在你在世時及去世後去保護你。

不要讓謠傳讓你無法規劃未來並保護你的家人。

參考 : Cleveland Jewish News (Sep. 20, 2018) “Estate planning myths common, but debunkable”