If you are concerned about a family member being able to care for themselves, you might want to consider guardianship. A guardian can be appointed for persons who cannot provide self care or manage their finances, who have dementia, or are otherwise incapacitated mentally or physically. Those who are habitually drunk or abuse drugs or have a developmental disability can also be considered incapacitated for guardianship purposes.
There are three kinds of guardianships:
- Guardian of the person—oversees living conditions, education, and medical services and treatment of the protected person (person with a guardian). A guardian of the person must be a natural person, not a corporation.
- Guardian of the estate—oversees the financial and investment affairs.
- Guardian of the person and the estate—oversees both the person and the estate (in many cases, one person serves as both kinds of guardians).
A guardianship can either be voluntary or involuntary, temporary or permanent. A voluntary guardianship is at the request of the ward or protected person, whereas an involuntary guardianship is at the request of family or friends of the protected person. A temporary or emergency guardianship can be court ordered, without a hearing, but can last no more than 60 days. A permanent guardianship lasts as long as necessary, but there must be a hearing first. Guardianships can also be limited, with guardians only having limited power. If not limited, the protected person has no legal capacity and must act legally through the guardian.
Among the issues to be decided at the guardianship hearing are—
- Can the person truly not care for themselves or manage their finances?
- Who would be the best guardian for the job?
- Who are the people who should spend time with the protected person?
- What decisions can the protected person make on their own?
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.