Guardianship is a legal process intended to help people who cannot or can no longer make or communicate sound decisions about themselves and/or their property. A legally appointed guardian, often a trusted family member, is responsible for making those informed decisions that are in the best interest of the incapacitated party.
What Does a Legally-Appointed Guardian Do?
When the court appoints a guardian of a disabled person, according to the National Guardianship Association (NGA),the guardian may have the following responsibilities:
- Determine and monitor residence
- Consent to and monitor medical treatment
- Consent and monitor non-medical services like education and counseling
- Consent and release of confidential information
- Make end-of-life decisions
- Act as representative payee
- Maximize independence in least restrictive manner
- Report to the court about the guardianship status at least annually
The court will usually require the guardian to provide a guardianship bond, which acts as insurance against any potential mismanagement of the incapacitated individual’s assets.
Health Care Decisions
The incapacitated individual must be allowed to live in the least restrictive environment possible. Further, a legally-appointed guardian must ensure that health care decisions for the disabled individual are made in accordance with regulations mandated by government programs for which the incapacitated individual is or may become eligible, such as Supplemental Security Income and Medicaid.
Guardianship of an Estate
Legally-appointed guardians are responsible for managing both real property, such as real estate and acreage, as well as personal property, such as (but not limited to):
- Bank accounts
- Insurance policies
- Stocks, bonds and investments
The guardian typically has to open a guardianship account (which must remain separate from any property belonging to the guardian) for the deposit of these funds and must maintain a detailed record of any expenditures.
Alternatives to Legally-Appointed Guardianship
When a family member has been catastrophically injured, making decisions on behalf of him or her can be mentally demanding. However, it is important to remember that guardianship is just one option and is not always the best option for a disabled individual.
Alternatives to guardianship, according to the NGA, may include:
- Representatives or substitute payees
- Case/care management
- Health care surrogacy
- Trusts, such as a special needs trust
- Durable powers of attorney for property
- Durable powers of attorney for health care
- Living wills
- Community advocacy systems
- Joint checking accounts
- Community agencies/services
Cases should be evaluated on an individual basis, as another options may be a better fit for the disabled person.
Getting Assistance from an Experienced Professional
If you’re considering your options for an injured loved one, an experienced settlement planner can help you develop a plan for his or her settlement proceeds. At Milestone Consulting, the objective is always to protect your loved one’s assets and government benefits while maintaining their highest possible quality of life.
A West Point graduate where he served as captain and military aviator, John Bair continues his commitment to our country through his efforts within the settlement planning industry. He has represented families of victims lost in the Flight 3407 crash, offered pro bono services to the families of 9/11 victims and drafted the first consumer protection bill for plaintiffs (H.R. 3699).