Applying for a guardianship is one of the hardest things you may ever need to do for an elderly loved one. The mere fact that you are seeking one means that they are no longer able to handle their own personal affairs, and need help handling their legal, medical, or financial matters. However, there are some things you should know before you apply for a guardianship and wind up with a situation you may not have bargained for:
- The final decision about guardianship is made by the court
- As nice as it would be to be able to decide who becomes your loved one’s guardian, that decision is ultimately up to the court. Once an application to the court has been made, the judge in charge of the proceeding will accept evidence of whether a guardianship is necessary, and who might make for a good guardian for the incapacitated person. Anyone who has an interest in the welfare of your loved one, even a non-relative, can submit evidence in the proceeding.
- Just because you applied does not make you the guardian
- Some people who apply for guardianships for their loved ones may discover that they have not been appointed the guardian. That is because the court decides based on the evidence what would be best for your loved one, and simply making the application for guardianship does not grant you automatic preference. In fact, the court may decide to appoint a complete stranger as the guardian, if they decide no one else is suitable for the role.
- Guardians are not the same thing as conservators
- While they are related, and both are established by applying to the Surrogate’s Court, guardians and conservators are not the same. Guardians are appointed to handle someone’s legal and medical decisions, while conservators are empowered to handle financial matters. While the two roles are often merged, in some cases the court will appoint a separate conservator from the guardian, if they believe someone cannot handle both roles.
- Guardians are legally accountable to the court
- Being appointed a guardian is a serious matter, and is not over just because the appointment has been authorized by the court. A guardian must make regular reports to the court about the welfare of the person they are caring for, along with commensurate filing fees. They are legally required to ensure their ward’s well-being, and may be held legally accountable if they fail in their duties.
- Guardians can be sued or jailed for misconduct
- The court takes the duty of a guardian to their ward very seriously. If they violate that duty by abusing or neglecting their ward, or by taking advantage of their authority over that person’s legal or financial matters, they could face serious penalties. They could be sued, and in some cases, they may even face criminal penalties for their actions. As such, a guardianship should always be handled with extreme seriousness.
The elder law attorneys at David J. Lorber & Associates, PLLC will thoroughly analyze your estate and work with you to determine the best means of transferring your assets, minimizing taxes, and ensuring your needs are met. For comprehensive estate planning services in New York, call David J. Lorber & Associates, PLLC at (631) 750-0900 or contact us online to schedule a free consultation at our Setauket office.