Question: What happens in a guardianship or conservatorship?
Answer: The formal requirements for the appointment of a guardian or conservator will vary among the states, but generally speaking, the process is handled by a probate court or circuit court. In many situations, the court will appoint a close relative, but there is no guarantee that the person appointed is someone who the incapacitated person would have chosen if they could voice their opinion.
Once a guardian has been appointed, the court authorizes and supervises the decisions of the decision-maker on behalf of the incapacitated person. The person acting as guardian will often employ the services of an attorney to file court documents to enable the guardian to sell assets, expend funds for the beneficiary’s needs and file accountings with the court.
Since legal and accounting fees are typically paid from the guardian account (i.e., assets), there is obviously a cost. If it can be avoided, this is generally a good idea.
Comment: An unplanned disability will most certainly involve costs, time, and other frustrations for the family. It is a good idea to plan for this contingency.
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sshane@offitkurman.com | 301.575.0313
Steve Shane provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts, and charitable trust. He is also experienced with drafting documents for business planning, the incorporation and application for exemption for Private Foundations and the administration of decedents’ estates.
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