If you have a loved one who is facing some challenging times, whether because of age, disability or a combination of those, you may be looking for a lawyer for some advice on how to protect the person and their assets. One way the law can be of assistance is through the legal guardianship process. You can petition the court for a guardianship using an estate guardianship attorney.
An estate guardian attorney is charged by their client with taking care of the estate of a person unable to care for themselves. The attorney will oversee the finances of the estate in the stead of a child or adult, called a “ward.”
Guardianships are overseen by the court. This usually guarantees some protection of the health and finances of the ward. A judge must approve most actions an estate guardian lawyer takes on behalf of the client.
What are the Duties of an Estate Guardian Attorney?
Find Out How An Estate Guardianship Lawyer Can Help You
The primary duty of an estate guardian is to protect the well-being of the ward and the financial well-being of the estate. Any action the guardian takes must be in service of that duty.
The estate guardian will have several responsibilities to the ward and to the estate. They will:
- Help clients petition the court to establish the guardianship
- Collect data on the estate’s inventory
- Plan and manage the estate
- Spend funds
- Budget funds
- Distribute income to the beneficiaries
- Report to the court regarding the ward and the estate
- Get court approval for certain actions taken on behalf of the ward.
There will be other duties as well. The estate guardianship attorney is said to have general fiduciary duties to the estate.
Two Types of Guardianships
Full or Limited Guardianships
The court may grant the estate guardian full or limited guardianship over the estate. It would depend on what type of guardianship the petitioner requests and whether the court finds the request appropriate.
The legal guardian will have decision-making power for the person and their financial affairs. Their power to make those decisions will be unlimited and can range from deciding where the ward lives to signing contracts in the ward’s name. So then, a full guardianship may be best for persons who clearly will not be able to make serious and consequential decisions for themselves over a long period of time. The full guardianship may work for a person who is suffering from Alzheimer’s and is near the end of their life or someone with a mental disability that cannot take care of themselves.
Note that a full guardianship severely restricts the power of the ward to make decisions, so the decision to seek guardianship for a person should be the final decision of a group of people who care about the individual. You should explore all other legal options before allowing the court to appoint a full guardian.
The guardian will have limited power determined by document. The ward can limit the guardian’s decision-making power to medical issues, contractual issues or financial issues. The powers can be very specific or broad, but still less than full guardianship.
If you are thinking that a limited guardianship is similar to the power of attorney, you are correct. However, given that a guardianship restricts the freedom of a ward, the guardianship must be approved by a judge. You can sign a notarized power of attorney document that will have legal force in some instances but will be less restrictive.
Before seeking a guardianship, you should review other options, like power of attorney, living wills and trusts.
Establishing a Guardianship
The court plays a substantial role in establishing a guardianship. The process is made easier by hiring an estate guardianship attorney, one who understands the process and what the court is usually looking for and can complete the process quickly and efficiently.
The court will want to know the extent of the incapacity of the person in question and whether there are other means than establishing the guardianship to sufficiently protect the person. The court will want to know that the ward’s rights are protected, so there will be a full accounting of what the guardian will be responsible for and what rights the ward will have going forward. Will the ward be able to vote, or sign a petition or contract? What ability will the guardian have to act on behalf of the ward?
Estate Guardianships When the Ward is a Minor
You may consider a guardianship in estate planning if you have minor children. If both legal guardians pass away before your kids turn 18, you may want to appoint someone to act as a guardian while they are still alive. This person will be a standby guardian and can be a family member or trusted friend. Despite the familial relationship between the ward and guardian, the court will still appoint the guardian only after going through a process. The guardian will be responsible for the personal and financial well-being of the minor child until emancipation.
Estate Guardianships When the Ward is an Adult
People often seek a guardianship for an adult when they are an infirm senior or a person facing other mental or physical health challenges. The type of guardianship one chooses in these situations will depend on the circumstances of the adult. You and the person you hope to help may want them to retain the power to make some decisions for themselves regarding their daily living. They may want control of health but may not want the burden of making financial decisions. When adults are involved, the court will take a hard look at the restrictions on the person’s freedom and will apply the guardianship accordingly. Remember that there are other ways the law can help older persons delegate care decisions, like power of attorney. The court may suggest those options, so it is good to consider them beforehand.
A situation may arise where you may want to get control of a person’s finances or retain the power to make important decisions for a person for a short period or in an emergency situation. This is possible in Missouri. The court can establish a temporary guardianship for a month. Whatever type of guardianship the court establishes will end after that period and the ward’s full rights will revert to them. In the case of emergency guardianships, the guardianship ends in a month unless either the court, the ward or the guardian takes an affirmative step to end the guardianship before the 30-day period ends.
Getting a Guardianship in Missouri
In 2018, the Missouri legislature revised the statutes regarding guardianships, which can be found in Chapter 475 of the legislative code. The law sets out parameters for who can be considered by the court to become a guardian, who will have a say in the decision, the responsibilities of a guardian and the process to petition and appoint a guardian.
Any relative of the potential ward can weigh in on the decision now, a point of controversy because of the possibility that persons with no apparent financial interest in the ward’s estate may have standing to sue. This has the potential to increase the number of lawsuits regarding a conservatorship decision.
There is now a background check requirement for some persons who may petition the court to be a guardian. This applies mostly to distant relatives that the ward/estate did not choose or an unrelated third party.
Missouri Estate Planning Attorney Helps Clients Establish Guardianships
While estate planning is ostensibly about protecting assets, the practice area is also about protecting people. When it comes to guardianships, estate planning helps protect people when they are at their most vulnerable. Our desires to help people at these times are among the things that drive our estate planning practice. We utilize our knowledge of the law and financial acumen to put our clients at ease during trying times. We also put our skill to use to get our clients the best possible outcome in a variety of situations. If you are considering the possibility of establishing a guardianship for a disabled adult or child or you want to establish a means to protect your family and your estate should something go wrong, call us at 573-332-8585 for a free consultation.
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