WHAT IS A GUARDIANSHIP AND WHY DO I NEED TO GO THROUGH ONE?

• Guardianship is a legal procedure by which a court appoints a legal guardian for a minor who is without one or who has inherited property (since minors are prevented from owning property outright). The procedure is sometimes referred to in other jurisdictions as a conservatorship or custodianship.

• The purpose of Guardianship is to promote and protect the well-being of an incapacitated person (ward) who is unable to handle his or her own affairs. In this case the legal incapacitation is merely being a minor.

• If the proposed Ward is an orphan, there may be insurance policies to which the child is the beneficiary. To safeguard these funds for the child the insurance companies will require a permanent guardianship. A guardianship may also be required to authorize medical treatment, or to enroll the minor in school.

TYPES OF GUARDIANSHIPS

• Generally speaking, there are two types of guardianships. The first type is Guardian of the Person. In this respect the guardian is responsible for the physical care and well-being of the ward and must report on this each year to the Court. The second type is a Guardianship of the Estate. This involves the handling of funds belonging to the incapacitated person for whom an Annual Accounting is due to the Court on the income and expenses for the ward in the preceding year. Minors may only be incapacitated in the sense that they need someone to handle their inheritance but otherwise have a living parent, so the Court may decide that this person needs a Guardian of the Estate only. When the person has no estate but needs someone to make educational, health care, living, or other decisions, the Court may decide that a Guardianship of the Person is the only ongoing need for the person. In yet other instances a guardian will be both a Guardian of the Person and a Guardian of the Estate. As you can see, the undertaking requires a law firm highly experienced in these matters.

• Since in the two guardianships discussed above the period are usually long-term, they are classified as permanent guardianships A Temporary Guardianship may also be needed in addition to a permanent guardianship. Since a permanent guardianship can take up to two months to be established, this type of guardianship allows critical action to be taken on the behalf of a proposed ward while all the required steps are being taken for a permanent guardianship. While this usually takes one or more additional hearings and costs a bit more, it can have the guardianship in place within a day or two.

WHERE DO I BEGIN?

• First, please realize that the process of creating a guardianship is a joint effort between the proposed guardian, the proposed ward whenever possible, the attorney ad litem who represents the proposed ward, and your attorney with his support staff. You can expedite this process by making a list of the full names and addresses of all the people related to the proposed ward. Likewise, a list of assets which includes inheritances, investments, and bank accounts, along with their approximate values is helpful. This information is critical to this process because the Judge will need it to set a bond to legally protect the child’s interests. A bond is either money deposited, a special type of insurance policy, or with the Court’s permission, a personal guarantee, and is no reflection of the Judge’s opinion of you or your case.

WHAT OTHER STEPS ARE INVOLVED?

• The first official step in the procedure is to file an Application for Guardianship with the Court. In some cases, a statement from a physician is required. The Court will then appoint an Attorney Ad Litem to give independent advice to the proposed ward. After official notice has been given to all required parties, a hearing will be held to determine the appropriateness of the guardianship. The Court will require an oath and a bond and then order Letters of Guardianship to be issued. When there is a Guardianship of the Estate, in order to submit the required Inventory, Appraisement and List of Claims, the next step will be to establish the value of the ward’s estate by sending bank verifications to the institutions which hold funds for the ward as well as collecting information on all other assets which are owned by the ward. While this is going on, we will need to determine if there are any unpaid debts and to run a legal notice in the newspaper along with written notification directly to the creditors when necessary. Also, when a minor child has inherited funds or property, it is in the best interest of the child to come up with a plan for investing those funds while insuring they are kept safe.

• The guardianship will continue until the child reaches adulthood. At that time they may petition the Court for termination of the guardianship and release of any funds. A final accounting will be required if funds are involved.

• As you can see there are many steps to be taken and a great deal of responsibility for the proposed guardian. This decision, though often not of choice, should not be taken lightly.

PROTECTION FROM UNSCRUPULOUS AGENTS AND GUARDIANS

• Guardians are required to act in the best interest of the ward, keep accurate records, and treat the ward’s property as separate from their own. The courts can remove and hold financially liable a guardian who does not act in the best interest of the ward even after the guardianship has ended.

GUARDIANSHIP AVOIDANCE

• Guardianships for minors can sometimes be avoided through the use of trusts and the proper coordination between insurance and those trusts. You should plan ahead so that your needs and desires can be followed in the event that a minor is left orphaned or inherited property.