Guardianship Duties for An Incapacitated Adult

POSTED ON: December 5, 2022

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Guardianship Duties for An Incapacitated Adult

When an adult becomes incapacitated and no advance planning has been done, someone needs to become a guardian to care for the incapacitated person. That individual is then known as the “ward.” This requires a court proceeding, where the court decides who should become the guardian. When this happens, the incapacitated person loses many of their fundamental rights, including the right to vote.

Guardianship procedures are more costly than creating a comprehensive estate plan, which includes planning for incapacity.

How does a guardian handle the ward’s finances?

The guardian is required to act as the ward’s fiduciary, putting the interests of the ward before their own. The guardian must keep meticulous records and be able to account for every dollar spent. In most cases, the guardian reports to the court on an annual basis. The guardian’s own finances must be kept completely separate from the ward’s accounts. No funds from the ward’s accounts or any trusts created for the ward should ever find their way into the guardian’s account (known as “commingling”), even if it would be far more efficient for cash management.

The guardian also may be responsible for applying for government benefits on behalf of the ward, overseeing the sale of the ward’s home and managing the ward’s investments. If the guardian is only responsible for finances, they are often known as a “conservator” to distinguish this more limited role.

Does a guardian get involved in day-to-day living arrangements?

In most cases, the guardian is also responsible for the person’s care, including housing and daily living. Accordingly, it is the guardian’s responsibility to ensure the ward has a safe and clean place to live and receives any care needed. This may be at the ward’s home with a caretaker, at the guardian’s home, or in an assisted living or full-care facility. The guardian is expected to be actively involved in the ward’s life, while overseeing the ward’s general well-being.

What kind of health care decisions is the guardian responsible for?

Health care decisions are also the guardian’s responsibility. The guardian is charged with making medical decisions in the ward’s best interest and, to the best of their ability, to make decisions just as the ward would have, if the ward were able to do so. The guardian speaks with the ward’s health care providers and works with them to make sure that the ward gets any care needed. The guardian should honor the preferences and consult with the ward, if possible.

Am I responsible for the ward’s expenses?

The guardian is responsible for managing the finances of their ward. However, they are not expected to use their own financial resources for their ward. Nevertheless, a guardian may be held responsible if assets are available and the guardian is not keeping bills current. Simple errors or oversights may be treated severely by the court. Therefore, detailed records and an attention to due dates are very important for the guardian.

Generally speaking, if you are acting in good faith, with diligence and care, the guardianship should not be an overly burdensome responsibility. In an ideal situation, even if one person in the family is the legal guardian, other family members are involved in their loved one’s life to ensure the best possible quality of life.

Contact Vick Law, P.C. today if you have concerns about your role as guardian or need to incorporate a plan for incapacity into your estate plan.

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