Frequently Asked Questions

  

1.  What is a guardian of the property?

A guardian of the property is a person or, depending on the state, other financial institution appointed by the court after a court hearing, who is given power and responsibility to handle some or all of another individual’s assets and financial affairs.  Some states may use the term conservator in place of the term guardian of the property.  

A guardian of the property owes a fiduciary duty to the individual, a duty of the highest trust.  The guardian of the property must use care in handling property, be prudent in making investments, and use assets only for the benefit of the individual and his or her dependents.  You must account to the court for all money and property received, all money spent, and each property sold.  A guardian of the property has title to the property, but does not own it.  Rather, a guardian of the property manages it for the benefit of the individual.  

2.  What is a guardian of a person?

A guardian of a person is a person who handles some or all of another individual’s health decisions as well as other personal decisions such as where to live and who to socially interact with.

3.  What is a durable power of attorney?

A durable power of attorney is a voluntary appointment by a person of another, which gives the other the power to make decisions and take actions as provided in that document.  This document frequently is drafted broadly so that the attorney-in-fact (agent appointed to act) may handle unexpected future events.  Many states allow you to choose when the power of attorney becomes effective.  Typically, the two choices are being effective immediately upon signing, or upon a person becoming mentally incapacitated in handling his or her financial affairs.

4.  What is a health care surrogate?

A health care surrogate is a voluntary appointment by a person of another, which gives the other the power to make health care decisions and take actions as provided in that document.  Many states use different terms, a common one being a medical power of attorney.  Most states provide that the medical power of attorney or health care surrogate becomes effective upon the principal’s inability to make medical decisions as determined by one or more physicians.

5.  Upon whom may a court impose a guardianship?

The individual must be a legally incapacitated individual and imposition of guardianship must be necessary to provide for the individual’s care.

6.  What is a legally incapacitated individual?

A legally incapacitated individual is an adult who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause... to the extent of lacking sufficient understanding or capacity to make and communicate informed decisions.  Short-term memory and awareness of the person’s own limitations and need for help are frequently considered in the assessment.

7.  What are letters of guardianship?

Letters of guardianship serve as proof of your authority to act, and set forth any limits to your power.  You should have received a certified copy of the letters of guardianship from the court.  Read it carefully; it will note any limitations on your powers, and set forth your reporting duties to the court.  If the letters of guardianship conflict with any of this information, follow the letters of guardianship.

8.  Do all guardians have the same powers?

No.  The court should only grant a guardian powers over those areas in which an individual cannot make informed decisions.  Any guardian upon whom the court grants fewer than all powers of a guardian is a limited guardian.  For example, a person who is appointed to make only medical care decisions for an individual is a limited guardian.  The individual would retain the power to act independently in all other areas.

9.  In general, what are the duties of a guardian?

The law states a guardian is responsible for the individual’s “care, custody, and control.”

10.  More specifically, what are a guardian’s powers and duties?

Unless limited by the court order, a guardian has the responsibility to -

­Determine where the individual lives

­Make provision for his or her care or 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

­If a guardian of the property is appointed, receive money due the individual and use it for his or her needs.

11.  In exercising powers, should I as guardian consider the wishes of the individual?

Yes.  A guardian should be guided by the known wishes, likes and preferences of an individual, whether expressed before the guardianship was established or currently.  If an individual can understand a decision is to be made, a guardian should confer with him or her before acting.  Whenever possible, the individual should be presented with choices.  These are important aspects of independence and dignity.

12.  Are the powers of a full guardian unlimited?

No.

13.  What are some powers a guardian does not have?

-Court approval is usually required to dispose of or transfer assets, in particular, real estate

-Commit an individual to a psychiatric hospital without a separate commitment hearing, unless the individual assents

­Cast the individual’s ballot in an election

­Determine his or her religious preference

­Write a will for the individual

­Physically punish him or her

14.  What are the guardian of the property’s obligations when handling money?

You owe the individual what is known as a fiduciary duty, one of care, confidence and trust.  You must be careful.  You must not intermingle the individual’s money with your own.  You cannot use the money for your own needs, including a loan.  You should not buy anything from or sell anything to, the individual without prior court approval.  If ordered by the court, you must account to the court for all money received and all money spent each year.

15.  Should I discuss financial matters with the ward (the person determined incapacitated)?

Yes, if possible.  A person who no longer has control of his or her money may feel others are stealing or otherwise misusing it.  You should try to allay those fears.  

16.  Is the guardian personally liable to pay for services to the ward out of the guardian’s money?

No.  However, when you are appointed guardian, the individual may not be receiving all financial benefits to which he or she is entitled.  It is part of your responsibility to seek out such assistance.

17.  Does the court have a role in protecting the individual from a guardian of the property who is inadequately performing his or her role?

Yes, in two ways.  First, upon appointing a guardian of the property, the court can require a guardian of the property to file a bond, a form of insurance against carelessness or misdeeds.  Second, the court requires a guardian of the property to file an annual account, which provides a means of oversight of the guardian’s activities.

18.  How else does the court oversee the activities of a guardian of the property?

Certain transactions of a guardian of the property may only be taken with specific court approval.  Typically, courts require a guardian of the property to seek court approval of the sale of a home or other real estate.  Any fees charged by a guardian of the property for his or her services are subject to court approval.

19.  What is a bond?

A bond is like an insurance policy to protect the individual’s assets.  The bond serves as a guarantee you will not misuse or be careless with the money and property entrusted to you as guardian of the property.  You may purchase a bond through an insurance agent.

 

The bond differs from insurance in that if it pays out, the bond company will seek reimbursement from the guardian personally.

 

The court sets the amount of bond based on the approximate value of property and annual income to which you have unrestricted access.  The insurance company will charge an initial premium covering the first year; the cost depends on the size of the bond set by the court.  The company will then bill you each year.

 

At any time in the future, if assets of the estate are substantially lower than when bond was originally set, you may request the court to reduce or cancel the bond.

 

The premium is payable out of the assets of the ward.  For the first premium, you may have to pay out-of-pocket, then reimburse yourself when you get control of the individual’s money.