Guardianships – Starting The Proceedings – Part 2

ESTATE DEPARTMENT

By Cary A. Lind

GUARDIANSHIPS – STARTING THE PROCEEDINGS – PART 2

Types Of Guardians.

A temporary guardian is appointed by the court pursuant to §4 of the Act “upon a showing of the necessity therefor for the immediate welfare and protection of the alleged disabled person or his estate.” The powers and duties of the temporary guardian must specifically be stated in the order of appointment, and the order must recite the actual harm identified by the court that necessitates a temporary guardianship. If not terminated sooner, an appointment of a temporary guardian terminates automatically 60 days from the date of appointment.

A plenary guardian is appointed for all purposes and to exercise all powers as guardian. An appointment may be as the plenary guardian of the estate, of the person, or both. A plenary guardian is limited only by the statutes and the supervisory powers of the court.

A limited guardian is appointed on a permanent basis but without being given full powers. §3 directs that the “guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations.” Despite those limitations in the Act, limited guardianship is rarely used. When a limited guardian is appointed, it is a significant drafting challenge to specify the powers that are given to the limited guardian. Any powers that are not given are reserved to the ward, so it is vital to specify what authority the guardian has.

The guardian of the person in general has custody of the ward and is charged with seeing to the ward’s personal health and well-being. §17 of the Act sets forth in some detail what the duties are and how the guardian should attempt to make the necessary decisions. In particular, the guardian of the person is directed to make decisions as he or she believes the ward would have made if the ward were still competent.

The guardian of the estate is charged with the responsibility for administering the ward’s property. In essence, the guardian of the estate is much like the executor or administrator of a Decedent’s estate, except that every disabled estate is “supervised.” Because the ward is still alive, all actions are subject to being revisited or changed at any time. §18 of the Act sets forth in detail the duties of the estate guardian. I recommend that you read §18 (as well as §17) in its entirety. There are some surprising provisions of that section which may come into play in certain circumstances.

A short-term guardian is appointed by a duly appointed guardian to act without Court approval during any defined periods, when the guardian is unavailable or unable to carry out his or her duties. §3.2 sets out an acceptable form for designation of the short-term guardian and the procedures prior to the short-term guardian’s acting. A short-term guardian is limited to acting for a cumulative total of 60 days during any 12-month period, and only one short-term ‘guardianship may be in force at any one time. §18.3 sets forth the duties of the short-term guardian and limits on his or her authority regarding the Ward’s assets.

A standby guardian is designated by the guardian to assume the duties of the guardian when the guardian can no longer act. A standby guardian must be appointed by the Court but need not file a bond until he or she assumes all duties as guardian. §3.1 contains the authority for standby guardianship and a suggested form for designation. §8-1 sets forth the procedures and requirements of the petition, which has some provisions different from the initial petition. §18.2 contains the duties of the standby guardian. In particular, within 60 days of certain events, the standby guardian should petition the Court for appointment of a permanent guardian of the person, estate, or both.

Note: Both the short-term guardian and standby guardianship provisions were added effective December 15, 1998. I have not seen either utilized, although I am working on a designation of short-term guardian. Both mechanisms should prove valuable in particular circumstances.