The purpose of a guardianship is protection, but the results do not always reflect this.
Guardianships were designed to help people, legally called "wards," who can no longer make their own decisions due to incapacity. Because of this, the wards lose all autonomy.
Unfortunately, this can leave them vulnerable because their money, visitors and contracts are determined by the guardian—a guardian whom the ward cannot petition to remove even if there are abuses.
Not all guardians have pure motives or good character.
What is being done about this issue?
According to a recent nextavenue.com post, titled "Guardianship Laws: Improving, But Problems Persist," 33 changes in adult guardianship laws were made in 18 states in 2014.
Any improvements are a move in the right direction.
What exactly did these changes address?
A recent report to the Commission on Law and Aging of the American Bar Association identified the following changes to include:
- Guardian background checks;
- Improved access of the ward to visitors and phone calls;
- Guidelines on health care decision-making by guardians;
- Defining fees; and
- Rights of people under guardianship.
There are also changes when it comes to granting guardianships, such as:
- The proposed ward must be notified and has the right to be at the hearing;
- This individual has the right to an attorney;
- “Clear and convincing" evidence must show the proposed ward is incapacitated and, in some states, must demonstrate a guardian is necessary to the individuals safety; and
- A medical expert must evaluate this individual.
In addition to this, most states require that limited guardianships be granted rather than a full termination rights for the ward.
However, this is not often the case.
Many advocates believe "clear and convincing" has been defined too loosely by judges with the criteria being nothing more than these unconvincing guidelines:
- a short letter from a general practitioner who has only spoken with the adult child;
- a statement from a doctor who is unaware of the difference between temporary delirium and permanent dementia;
- a court petition from a proposed guardian or conservator with definitive bias;
- a petition from a nursing home wanting more business; or
- a statement from an adult child who would rather want full control than figure out the specific care needed for the individual.
Even if the guardianship is warranted, monitoring has its challenges.
Most states require paperwork to be filed by guardians and conservators on a regular basis.
Unfortunately, courts do not have enough resources to track and investigate compliance.
So, while the goal of court guardianships is noble, you should not rely solely on these.
Discuss your wishes with an experienced estate planning attorney so you choose your guardian instead of the court.
So, how do you find an "experienced" estate planning attorney?
First, ask around. Friends, family and other professional advisors are trustworthy sources.
Second, conduct an "organic" search on "Google" for "estate planning" near you (e.g., "Estate Planning Anytown MoKan").
Third, either way, verify. Check out the education, experience, ratings and client reviews of any attorney before you contact him or her.
In fact, I use both of these services to thoroughly vett attorneys before referring members of our "client" family for legal help in other areas of law or for matters in jurisdictions outside Kansas or Missouri.
Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.
For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.
Reference: nextavenue.com (May 24, 2016) "Guardianship Laws: Improving, But Problems Persist"