Guardianship vs. Power of Attorney

While many law terms can sound quite similar to the uneducated, oftentimes, there are things that make them vastly different from one another. Two of those terms that could potentially throw people for a loop are Guardianship and Power of Attorney. Let’s check out the differences below:

With a power of attorney, an individual can name his or her own power of attorney, but the courts have to appoint a guardian. However, both of them are considered to be fiduciary and both have basically the same amount of authority to make financial decisions. If a person wants an elder to have a guardianship, they could hire an attorney, but the elder has the right to an attorney too. If he or she might require a guardian, they have the right to go to court and present evidence to the contrary.

If a guardian does get appointed, he or she has to keep a regular account and present to the court on how any money is being spent, and how much. The courts also have the ability to keep watch over what a guardian (or conservator) does. They can also change the guardian, expand or limit any duties, and make rulings that affect the powers given to guardians. Conversely, a power of attorney isn’t required to make reports to the court, and a durable power of attorney document doesn’t actually need the power of attorney to report on how money is spent. Further, the durable power of attorney is normally permanent.

A guardianship (or conservatorship), by contrast, can be temporary, but oftentimes becomes permanent once the court learns the elder needs a permanent guardian after the temporary one reports to the court. It also costs less to create and appoint a durable power of attorney, even if a lawyer may have drawn up the power of attorney document and spent time going over issues and explaining duties to you, as well as what the document as a whole actually means. Since the court isn’t directly involved, it’s actually a lot simpler to create and appoint a durable power of attorney than a guardianship.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

How to Terminate a Guardianship

If you’re looking to terminate a guardianship, it’s going to require a court hearing in many cases. Anyone can file the papers—relatives, guardian, subject of the guardianship—and inquire of a judge to see if a guardianship is still necessary.

Let’s look at some of the reasons why you might choose to terminate a guardianship:

  • Death: When the ward dies, a final accounting is needed to close a guardianship over an estate. A hearing must be held to approve final accounting and close the case.
  • Age of Majority: This only applies if the ward was a child who has now turned 18.
  • Parents will Care for Child: Guardianships can be closed if the ward is a child and the parents are now able to care for him or her. They must prove they have fixed whatever allowed the guardianship to be granted, and that they can properly care for the child. They must show they can give shelter, food, and clothing, and that they can meet the child’s medical and educational needs.
  • Moved Out of State: A guardianship may be closed if the ward has moved to another state and the guardianship has been received in a new state. Proof of the other case has to be given.
  • Competency: This only applies if the ward is now an adult who is both competent and able to manage his or her own affairs. Two doctors need to certify that the person is competent, and any request to end a guardianship on the grounds of competency of the adult have to be supported by two letters from two doctors stating the ward is competent.

Now, let’s look in detail at the steps you’ll need to take in order to terminate a guardianship.

  1. Complete Paperwork: You’re going to have to complete a Petition to Terminate Guardianship, and a Citation or Notice of Hearing. This document tells the judge why you think that the guardianship is no longer required. Be sure to complete all the sections and attach any exhibits that support your argument.

You’ll also need to file the Citation to Appear or Notice of Hearing, and when you file it, you’ll need to have a court date for the judge and any interested parties to appear in court. If the ward is still living, complete the Citation to Appear and Show Cause; if they are passed, complete the Notice of Hearing.

  1. File the Paperwork: Just like with the other documents, you can file your documents in a few ways:
  • In person at the family courthouse
  • By mail
  • Online through Wiznet
  1. Serve the Guardians and Other Parties: THIS IS IMPORTANT! If this step is done improperly, the judge can cancel your hearing! All the documents must be mailed to guardians and relatives, and this is usually the same group who have been receiving notice of proceedings prior to this. This allows you to make sure the guardians and relatives know about the hearing and have a chance to respond. If the ward is alive, mail the petition and citation to all the required people by certified mail, return receipt requested. If the ward has passed away, you can send the petition and notice of hearing to everyone via regular mail.
  1. Submit an order to the judge one week before hearing: If the judge ends the guardianship at the hearing, he/she will sign an official order ending it. Prepare the order ahead of time and submit it to the judge so he or she will have the necessary paperwork at the hearing. Fill out the Order Terminating Guardianship and take it to the family court a week before hearing.
  1. Attend the Hearing and file final papers: Be sure and arrive to the courthouse early so you have enough time to do everything you need to beforehand. If the judge terminates the guardianship, he or she will sign the Order Terminating Guardianship. Be sure to bring it if you forgot to turn it in beforehand, and afterward, you have to make sure it is filed at the Clerk’s Office.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

Who Supervises a Guardian?

A guardian is someone who looks after our children if we cannot do so ourselves or if our spouse is unwilling or unfit to take on the responsibility. We do have the power to appoint guardians to care for our children, but they can also supervise our elderly loved ones too. And that’s great and all, but it leaves the question of “Who is supervising the ones supervising those we care about?”

Once a guardian has been appointed by the court, the court then keeps an eye on that person. The guardian must also receive approval for any medical procedures that carry a good amount of risk to the life and well-being of the one they’re caring for. It is also necessary for them to get permission from the court for any changes in classification to the abode of the person in their care—like moving from a private residence to a nursing home, for example, and they also have to provide an annual report to the court on the status of the ward’s health.

A guardian of the property is also required in order to keep careful record of any finances, file an initial inventory, and file any yearly accountings with the court.

Even though a guardian might be less desirable than an advance directive or Powers of Attorney, there are times where it is the only option we have in order to give someone the necessary care they cannot give themselves, and to make the decisions they cannot make on their own.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

Guardianship for Minors

No one wants to think that one day they’ll have to leave people they love behind. After all, it isn’t a pleasant thought, leaving anyone—let alone children who may or may not be old enough to understand what’s happening. We want to ensure that our children (or grandchildren) will be well taken care of, even if we ourselves won’t be there to see it through, and we can do that through what’s called a guardianship. We’ve covered it previously, but let me explain a bit further now.

There are a few ways in which a guardian can be named: either through a will or by the Surrogate Court. However, designation via Surrogate Court normally only takes place if a minor receives some kind of inheritance or proceeds from a lawsuit. In this case, any monies normally deposited in the County Surrogate’s Office Intermingled Minor Account will then be held until the child or children reach eighteen years of age.

There’s also a third option available. With this option, a guardian is also able to post a bond and invest any and all monies on behalf of the minor child or children. What’s more—if the minor is left any real property that the guardian wishes to sell, he or she must first get the court’s permission to do so.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.