Guardianship & Conservatorship – Ins & Outs
By Frank Demarinis
Every adult is assumed capable of making their own decisions unless a court determines otherwise. If one becomes incapable of making responsible decisions, the court will appoint a substitute decision maker, called a “guardian,” or “conservator” if limited only to finances. Guardianship is a legal relationship between a competent adult (the “guardian”) and an impaired person no longer able to take care of their own affairs (the “ward”).
Beyond this basic legal definition and framework, here’s where things get “sticky.” Some can make responsible decisions in some areas but not others. The court may give a guardian decision-making power over only those areas in which the incapacitated person is unable to make responsible decisions (a so-called “limited guardianship”). A limited guardianship may be attractive if the main concern is the management of finances and the person is still able to be independent in other areas of life. A limited partnership is also more likely to be granted because the standard for finding a person totally incompetent is much higher.
A person cannot be declared incompetent simply because they make irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because they spend money in ways that seem odd to someone else. Also, having dementia is not, by itself, enough to declare a person incompetent.
Guardianship can be expensive, running $5000 – $10,000 depending on whether it would be a “contested” guardianship or not, including factors such as if there are multiple siblings with different viewpoints. Once approved, there is also much administrative process in every action the guardian takes, including court oversight and approval. For example, a guardian selling his or her parent’s home might need to first seek court approval and provide multiple appraisals to demonstrate that the transaction is in the parent’s best interests. Annual inventory and maintenance of receipts, etc can be an administrative headache. The court may assign someone from the State, or if a private guardianship agency is utilized, fees can be extravagant ranging from $150 – $250 per hour on average.
So what are the alternatives?
Power Of Attorney
A power of attorney can be effective immediately, versus upon incapacitation and a negotiation between parent and adult child. This negotiation can include a third party to mediate the process, such as a resource agency like Senior Advisors of Delaware.
Representative Payee
This is a person appointed to manage Social Security, Veterans’ Administration or other state/federal benefits. Having a POA alone does not enable someone to change one’s SSA Benefits. Resource help can be offered to pursue this option.
Revocable trust
A revocable or “living” trust can be set up to hold an older person’s assets, with a relative, friend, financial institution or agency serving as trustee.
Assessment of driver’s license
An issue related to the topics in this article is when an adult child becomes concerned about the parent’s ability to drive safely. In Delaware only a physician may direct a letter to Department of Motor Vehicles which will trigger a re-exam/drivers test and/or revocation of license.
Senior Advisors of Delaware, LLC non-profit program assists in all of these alternatives. Reach out for more information if you think guardianship or other options might benefit your loved ones or someone you know. We partner with a multitude of attorneys and clinicians to assist in our outreach and resources. Consult with a Senior Advisor to know your options. Call us for a free consultation, Frank Demarinis at 800-564-0173.
1-800-564-0173
