When Is Guardianship Necessary?

Howard S. Krooks, JD, CELA, CAP, is an elder law and special needs planning attorney practicing in New York and Florida. He answers questions from advisors facing long-term care planning issues.

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Dear Readers – I am frequently approached by clients with questions about guardianship. Is it appropriate to commence a guardian proceeding? What do I have to prove? What concerns should I have about bringing a guardian proceeding? Can it be avoided? I’ve asked Howard Krooks to answer those questions in lieu of my weekly article. Bev Flaxington

Guardianship is considered a means of last resort in most states, meaning that if there are other, less restrictive ways of managing a person’s affairs, they must be pursued before asking a court to get involved. Appointment of a guardian requires that a court restrict or remove a person’s civil rights. Thus, if there is a durable power of attorney in place, it may not be appropriate to commence a guardian proceeding over the person’s finances because the agent under the power of attorney can implement a proposed financial transaction without restricting the person’s rights. The court will want to know why the agent appointed under the power of attorney cannot manage the person’s finances without court involvement. In some circumstances, it may be that the power of attorney is not drafted to allow the agent to consummate a particular transaction, and, in that case, even though there is a power of attorney, it may be necessary to appoint a guardian with limited authority.

If a healthcare decision is involved, the court will want to know whether a healthcare proxy/surrogate has been appointed. If so, then why is it necessary to appoint a guardian to make personal needs decisions? Here, again, it may be that the document executed is insufficient to confer the necessary decision-making authority, or perhaps the appointed agent is no longer available to serve and the person has become incapacitated so that he or she can no longer appoint another agent, thus requiring the court to decide who shall make these types of personal needs decisions.