Top 5 Reasons To NOT Initiate a Guardianship

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Top 5 Reasons To NOT Initiate a Guardianship

Few occupations are mandated to review the reasons for accepting new clients, but that’s what guardians do all the time.

In the world of guardianship, there is an expectation that alternative solutions are explored before resorting to guardianship, and the best solution may be the least restrictive.

There are many reasons why a proposed guardian, whether they are a family, professional, or public guardian, may want to exhaust alternative solutions before the guardianship is initiated.

OUR TOP 5 REASONS TO NOT INITIATE A GUARDIANSHIP:

  1. Guardianship denies a person’s civil rights. Some of our most treasured rights and freedoms can be legally removed during a guardianship proceeding, such as the right to vote, determine residence, work, marry, drive, and consent to medical treatment (to name a few).

  2. Guardianship decisions are ultimately controlled by the court system.  Based on what is presented by attorneys and exam committee members, a judge decides which rights are removed or retained and who will be guardian. These decisions may not make everyone happy, and may not be what was initially proposed, especially if there is conflict in the family.

  3. Guardianship is expensive. There are the initial costs, such as court filing fees, court-appointed attorney fees, examining committee member expenses, and fees for attorneys representing the guardian(s) or other proposed guardians or family. Then there are the ongoing costs, which include filing fees, attorney’s fees for the guardian(s), accounting fees, and possibly professional guardian fees or annual bond charges.

  4. Guardianship requires court authority for many normal day to day decisions and transactions. Selling a home, moving out of state, cashing in life insurance policies, initiating estate planning, selling a car, planning for future Medicaid needs, pre-planning a funeral, or even gifting money to an adult child may require the court’s approval.

  5. While it is possible to change an appointed guardian, move the court case to a different county, or undo the guardianship, these processes are often difficult, expensive, and time consuming.

WITH ALL THESE FACTORS AGAINST ESTABLISHING GUARDIANSHIP, WHY SHOULD IT BE USED AT ALL?

Guardianship may be the ONLY way to protect someone from himself or herself, from exploitation and loss of their assets, or to allow someone to step in to make medical decisions when a person cannot consent to treatment. Guardianship is a powerful tool used to remove a person from an unsafe environment and to allow a plan of care, including coordinating medical care, applying and receiving benefits, maintaining real and personal property and much more.

If you are considering guardianship, please meet with an experienced elder law attorney, preferably one who is an expert in guardianship and probate matters. It is a complicated field, and it helps to seek experienced and knowledgeable counsel who keeps up with the latest changes in elder care laws. Additionally, ask plenty of questions and make sure you get clear, detailed legal advice about guardianship, and alternatives to guardianship that may be better for an individual situation to make a well-informed decision.

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00a7e40This blog is shared by Theresa Barton, the expert behind The Guardian Network with more than 25 years of experience in the field of Elder Advocacy, Care Management and Guardianship. Learn more about Theresa’s work and resources for families, caregivers and health, support and legal professionals here.

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