Common Mistakes With Guardianship

To take on the responsibilities of a guardian is a vital role and one of exceptional trust and responsibility. Read on to learn more about avoiding some common mistakes.

Essentially there are two roles a guardian may undertake. Guardianship of property of guardianship of a person. Each is different. A court may appoint an individual to serve as both or may appoint two separate individuals. The individual known as the “ward” is the person a guardian or guardians have been appointed for.

The primary responsibilities of a guardian for an individual are to address medical decisions for the ward as well as decide upon the living arrangements of the ward and that the ward receives the appropriate level of safety, care and attention. Conversely guardians of property for a ward are responsible for managing the assets and property of the ward, with the wards benefit primarily in mind. Although one person can perform both roles, if two individuals are taking on one role each, it is vital communication and cooperation are paramount to ensure the best interests of the ward are maintained. The ultimate purpose for a guardian or guardians is to ensure their ward has the best quality of life available. However, we will review some common pitfalls to avoid ensuring this goal is met and maintained.

Not Obtaining and Watching the Assets of the Ward

It is vital the guardian of property thinks comprehensively about the ward’s financial situation. Beyond bank accounts, mortgages and other common financial arrangements. The guardian must search thoroughly for all property the ward is in ownership of as well as take steps to regain property or belongings which may be in the possession of someone else.

It is mandatory the guardian files an annual plan that states where the ward will live and how the needs of the ward will be met as well as a copy of their medical records for the previous twelve months. This must include a physician’s report who would have completed a physical examination of said ward evaluating the condition and ascertaining the incapacity of the ward still exists. This must be done within a specified number of days of the filing of the plan, so it is important to consult with an attorney to ensure the relevant timings are met.

Ensuring Reports Are Filed on Time

The guardian of the property’s annual submission looks back on the previous year, while the guardian of the person’s annual plan anticipates the upcoming year. Every year, the guardian of the property is required to submit an accounting that details all of the ward’s earnings for the pertinent accounting period as well as the quantity and reason for every expense incurred on the ward’s behalf. It is crucial that you supply copies of all bank account and asset statements for the entire year, as the accountings need to be accompanied by these documents.

Drafts of these documents are typically created by your attorney, so it’s critical that you send copies of your statements to them frequently and keep them informed of any unusual expenses.

Even though the court is usually accommodating, if you don’t submit your annual reports on time, you risk receiving an Order to Show Cause, which calls for the guardian to appear in court and explain why they haven’t been acting, as well as penalties, being removed from your guardianship, and other disciplinary actions from the court.

Improper Record Keeping

A prevalent theme among numerous errors outlined here is the neglect of keeping thorough and comprehensive documentation. To complete the required annual reports (as explained above), accurate records of income and expenses are essential. However, records are also significant in relation to guardianship fees. In general, guardians are entitled to fair compensation for the services they provide on the ward’s behalf. Guardians should keep a running timesheet of the tasks they complete on the ward’s behalf, including the date, a description of the services provided, and the amount of time spent on each task, as these fees are typically based on an hourly rate. Maintaining a precise timesheet is highly beneficial when requesting guardianship fees and reimbursement from the court.

The Co-Mingling of Assets

Gathering and overseeing the ward’s assets is the guardian of the property’s primary responsibility. Unless they are professionals, most guardians have day jobs in addition to their guardianship duties. For this reason, guardians may find it tempting to try to expedite asset management by any means necessary. Combining the guardian’s personal assets with the ward’s assets is a typical method of accomplishing this. Guardians frequently take this action because it saves them numerous trips to the bank and enables them to manage all of their assets—as well as those of the ward—in one convenient online banking view.

Co-mingling assets can amount to theft on the part of the guardian because it makes it nearly impossible to accurately account for the ward’s possessions. It is strictly forbidden to combine guardianship assets with those of any other individual. The ward’s assets should be meticulously documented, so guardians need to be on the lookout for this.

Obtaining Recompense Without the Approval of the Court

Although acting as a guardian is a privilege, it is frequently difficult and time-consuming. Because of this, the majority of guardians are eligible for payment for the time they spend looking after their ward. In addition, incidental costs related to providing care for their ward may come up for guardians. For example, gas costs may apply when taking the ward to a doctor’s appointment, which is an hour away. The ward’s assets may be used to reimburse the guardians for these costs.

However, without the court’s approval, the guardian is not allowed to pay for or reimburse themselves for out-of-pocket expenses. There are two major reasons why the court approves fees and reimbursement. It safeguards the ward first and foremost by making sure that the fees paid to the guardian are fair and that the costs for which the guardian is requesting reimbursement were truly necessary for the ward’s benefit. In addition, it safeguards the guardian by giving them a formal court document approving the payments, which they can use to prove to other interested parties—like the ward’s family—that the costs and reimbursements were appropriate and justified.

Guardians should never pay for fees and reimbursement without first consulting their attorney. They should also think about asking their lawyer to submit a regular, yearly petition for fees and expenses.

Acting Without Legal Consultation

The court never gives up supervision of the guardianship, even though it gives the guardian authority over the ward’s person or property, or both. Before executing any nonroutine action on behalf of the ward, guardians should always speak with their attorney to make sure that no court approval is needed and to safeguard both their own and the ward’s interests.

Making Contracts On Behalf Of the Ward Without Court Approval.

Nearly all of us of us sign contracts quite frequently that we can forget nearly any arrangement we make from a cell phone contract to a lawn care plan is a contract and may necessitate the approval of the court if a contract is to be entered on behalf of the ward. These kinds of contracts need to be approved by the court for several reasons. By having an impartial third party vouch for the agreement’s reasonableness, the guardian is safeguarded. The other party to the agreement gains reassurance they may depend that the guardian will carry out the terms of the agreement, which is another advantage.

It is imperative for a guardian to explicitly inform all parties up front that any agreement they consider or negotiate on behalf of their ward is subject to probate court approval. Ideally, the agreement should include a written clause requiring court approval.

Not Comprehending The Rights The Ward Still Maintains

Because each ward is different, each guardianship is distinct. As a result, it is crucial guardians know which rights have been granted to them and which are still held by the ward.

When the court enters an Order Determining Incapacity and an Order Appointing Guardian of the Person or Property (or both), traditional guardianships are established. They will specify which rights belong to the guardian and which belong to the ward.

“Delegable” and “non-delegable” rights are distinguished by law. Delegable rights can be taken away from a ward and given to their guardian; these include the ability to enter into contracts, choose where to live, and make healthcare choices. Regarding non-delegable rights, in the event of their removal, do not transfer to the specified guardian.

In certain situations, the ward may retain all other legally permissible and non-permissible rights after the court only removes the specific rights that the ward is unable to exercise. We call this kind of guardianship limited. A limited guardian is designated to only carry out the particular rights specified by the court, allowing the ward to exercise their own right to make decisions and make use of all other rights.

It is not unusual for a ward to maintain some rights that are nondelegable, like the ability to vote and drive a car, even though many guardianships grant the guardian full control over all delegable rights. The ward always maintains the right to review the annual guardianship report and to be restored to capacity without undue delay. It is also important to note that not all rights of the ward, such as the right to vote, may be assigned to the guardian.

Guardianship aims to provide the ward with the maximum amount of freedom and autonomy while also providing for their protection. In order to accomplish this, a guardian upholds the rights the court expressly granted to the ward, regularly check in on the ward, and notify the court if  the ward should have some or all of their rights restored.

Not Regularly Reviewing The Ward’s Circumstances

The person’s guardian is in charge of choosing the ward’s living arrangements and making medical choices for them. As previously mentioned, the aim of guardianship ensures the ward’s safety and needs are satisfied while simultaneously attempting to offer the ward as much freedom and autonomy as feasible. The law mandates that the guardian assess a ward’s living arrangement and determine if the current placement is the “least restrictive alternative” that meets the ward’s needs while assisting them in maintaining their independence.

For instance, a ward might be better off being placed in a less restrictive assisted living facility Conversely, a part time caregiver a few days a week might be the preferential option if a ward is living at home and not getting the support or care they require. The guardian must keep in regular contact with the ward in order to assess the ward’s evolving needs and consider the least-restrictive option.

Arizona Family Law

Naming guardians in your will can be part of your estate plan. You may think you’re too young or don’t have enough money to justify the expense, but if you have children, you have priceless assets. There are many considerations when naming guardians for your kids. However, the process doesn’t have to be expensive or complicated.

There’s nothing better than the peace of mind you will have knowing you’ve protected your family at a time when they need it most. Let us help. Schedule a consultation or contact Ogborne Law, PLC of Arizona today.