• Guardianship Over the Person and their Financial Affairs
  • February 26, 2015 | Author: Timothy K. Spencer
  • Law Firm: Weltman, Weinberg & Reis Co., L.P.A. - Brooklyn Heights Office
  • An individual who is unable to take care of him or herself due to either infirmity or age requires a responsible guardian to oversee the personal and/or financial affairs of that individual. "A guardian is a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for some peculiarity of status, or defect of age, understanding, or self-control, is considered incapable of administering his [or her] own affairs."1 A probate court also makes the determination of whether an individual is incompetent. Once an individual is adjudicated incompetent, a guardian must be appointed. Once appointed, the guardian controls the personal and/or financial affairs of the ward. The extent of the guardian's responsibilities over the ward, what powers the guardian has, and what requirements a guardian must fulfill are all issues handled by the state in which the guardianship is created.

    A guardian of the person and estate of a ward in Ohio must perform several duties. Under Ohio law, a guardian "shall have the custody of the ward, the obligation to provide for the education of the ward as required under section 3321.01 of the Revised Code,2 and the management of the ward's estate during minority...."3 In addition, the guardian must file a full inventory of the real and personal property of the ward three months after the guardian's appointment; manage the estate for the best interest of the ward; pay all debts due from the ward from the ward's estate, collect all debts owed to the ward, and handle all suits involving the ward; obey all orders and judgments of the courts touching the guardianship; suit on behalf of the ward when in the best interest of the ward; and settle and adjust the assets a guardian may receive in kind from an executor or administrator for the greatest benefit to the ward.4 The guardian is also responsible for making all healthcare decisions on behalf of the ward. In limited circumstances, a guardian may need to post a bond.

    In Ohio, only a court can require the posting of a bond. If the probate court requires a bond, a guardian of the estate must post a bond that is at least double the value of the ward's personal estate and annual rentals.5 The bond may be waived if the value of the personal estate and annual rents is less than $10,000.6 At any time during the guardianship period, the court may reduce the bond as it sees fit. Generally speaking, these bonds help guarantee that legal guardians act in the best interest of the ward.7

    Generally speaking, a Michigan guardian is responsible for the incapacitated individual's "care, custody, and control."8 Under this authority, a guardian may "determine where the individual lives; make provision for his or her care and comfort, including food, clothing, and shelter; obtain services to achieve the best possible state of well-being; return the individual to self-management, if and when possible; authorize or refuse medical treatment; take care of clothing, furniture, vehicles, and other belongings, and, if a conservator is not appointed, receive money due the individual and use it for his or her needs."9 In Michigan, when a guardian is not vested with financial powers, the person who then controls an individual's financial affairs is known as a conservator.10 The conservator has broad power to handle all assets held on behalf other protected individual and to make payments from the assets for the health, benefit, and welfare of the protected individual.11 The conservator—or a guardian with financial powers—is normally required to post a bond if the protected individual's assets exceed $2,000.00.12

    In Illinois, it is a guardian's duty to protect the person under guardianship, known as the "ward". The guardian must actively and regularly monitor the ward's activities, health, and living arrangements.13 Additionally, "[t]he guardian must take those actions on behalf of the ward which are necessary to serve the ward's best interests."14 To this end, the guardian has custody of the ward and the ward's minor and adult dependent children; must provide support, care, comfort, health, education, and maintenance for the ward; must obtain any needed professional services (e.g., health); and must assist the ward in developing maximum self-reliance and independence.15 If the guardian of the person and the guardian of the estate are different persons, then the guardian of the person may petition the court for an order directing the guardian of the estate to pay an amount periodically so that the ward can receive certain necessary or appropriate services.16

    Like other states, guardians of the estate in Illinois are appointed solely for the management of the ward's financial affairs, and this authority is broad. A guardian of an estate may also be the guardian of the person. In Illinois, a guardian must post either a surety or non-surety bond.17 If the ward's assets are significant, the probate court will require a surety bond.18

    Under Pennsylvania law, a guardian may be appointed for "an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his [affairs]."19 Generally speaking, an appointed guardian must: (1) assert the rights and interests of the incapacitated person; (2) respect the wishes and preferences of the incapacitated person as much as possible; (3) provide the incapacitated person with supportive services to meet the person's needs; and (4) encourage the incapacitated person to participate as much as possible in their own affairs.20 If the guardian's duties do not include power to handle the incapacitated individual's financial affairs, the court may also appoint a guardian of the estate and bestow upon that individual those powers.

    In Pennsylvania, all guardians must execute and file a bond in an amount determined by the court unless otherwise stated under Pennsylvania law. Specifically excluded from filing a surety bond for guardianship are guardians appointed by will, inter vivos instrument, or insurance contract, unless such is required by one of those documents; if certain banks or trust companies are appointed as a guardian; if a nonresident corporation or a nonresident national bank is appointed guardian; or if the court decides that no bond is necessary.

    Only an adult Florida resident, related or unrelated to the potential ward, may be a guardian over a Florida ward. In Florida, a guardian over the ward's property is obligated to inventory the ward's property, invest it prudently, use it for the ward's support, and account for it by filing detailed annual reports with the court.21 If the guardian's power also includes authority over the ward's person, the guardian must provide for the ward's well-being, including the provision of medical, mental, and personal care services, providing a residential setting best suited for the ward, and making non-financial decisions (if guardianship is not also over the estate) for the ward.22 In Florida, all guardians must give sufficient bond to cover the amount of cash on hand and other liquid assets, unless the court waives the bond.23

    Probate courts appoint guardianship over individuals who cannot, essentially, take care of themselves in order to ensure the individual's needs are met. While in a general sense the requirements of guardianship are somewhat universal, states do differ in their definitions of what makes an individual suitable to have a guardian appointed for him or her, whether the guardian must post a bond in the guardian’s role, and what duties the guardian has in the guardian's role over the ward. A person interested in serving as a guardian must reference his or her state's laws in order to ensure they properly abide by the state's requirements relating to guardianship.

    1 The Law Dictionary, http://thelawdictionary.org/guardian/ (2nd Ed. Last visited January 6, 2015).
    2 Ohio statute requiring education for children of a certain age.
    3 ORC 2111.07.
    4 ORC 2111.14.
    5 http://www.ohiolegalservices.org/public/legal&under;problem/wills-and-probate/guardianships/qandact&under;view
    6 http://www.ohiolegalservices.org/public/legal&under;problem/wills-and-probate/guardianships/qandact&under;view
    7 Don Ford, Guardianships, Ford and Bergner LLP, http://www.fordbergner.com/legal-practice-areas/texas-guardianship/texas-estates/estate-guardianship (last visited January 6, 2015).
    8 Bradley Geller, Handbook for Guardians of Adults, Michigan Long Term Care Ombudsman Program (6th ed. 2006), available at http://www.nlrc.aoa.gov/nlrc/legal&under;issues/capacity/docs/Michigan&under;Guardian&under;Handbook.pdf.
    9 Id.
    10 Patricia L. Patterson Courie, Michigan Guardianship and Conservatorship Handbook, http://www.icle.org/modules/books/chapter.aspx?chapter=10&book=2000556550&lib=probate-estate§ions=1&from=store (last updated Nov. 28, 2014).
    11 MCL 700.5423.
    12 MCL 700.5410.
    13 ILLINOIS LEGAL AID, GUARDIAN’S RIGHTS AND RESPONSIBILITIES SERIES—ARTICLE 4: THE GUARDIAN’S ROLE, RIGHTS AND RESPONSIBILITIES, http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp&under;Content&contentID=1603 (last updated May 2006).
    14 Id.
    15 Id.
    16 Id.
    17 Id.
    18 Id.
    19 20 Pa. Cons. Stat. Ann. § 5501.
    20 DISABILITY RIGHTS NETWORK OF PENNSYLVANIA, GUARDIANSHIP IN PENNSYLVANIA, available at http://drnpa.org/File/publications/guardianship-in-pennsylvania--march-2010-.pdf (last visited Dec. 5, 2014).
    21 Eighteenth Judicial Circuit: Seminole County, Florida, Florida Guardianship Law and Information, available at https://umshare.miami.edu/web/wda/ethics/gurardianship&under;rev1-07.pdf (updated as of January 2007).
    22 Id.
    23 Fla Stat. § 744.351.