Thursday, March 13, 2008

Guardians and Guardianships

Guardians and Guardianships:

• Hundreds of thousands of Americans who have been declared incapable of handling their own affairs are placed under the supervision of court appointed guardians.

• The principle of limited guardianship, which requires that a guardian “should be appointed only when necessary, only for as long as necessary, and with only those powers as are necessary,” has been adopted in many states.

• To be wrongfully subjected to guardianship may be the greatest loss of rights a person can experience short of being sent to prison. Although you can usually respond to a guardianship petition or challenge an existing guardianship informally, professional representation increases your chances of being taken seriously by the court.

• A for-profit guardian acts principally out of economic motives, not from affection or family obligation, and an unscrupulous for-profit guardian is uniquely positioned to exploit you and your assets given the scope of a guardian’s powers.

• Fighting an unwanted guardianship is not easy. To begin with, your loved ones will be petitioning the same court that originally declared you incompetent.

• To contest an existing guardianship arrangement, your relatives or loved one may file a formal legal petition asking that the guardian be removed or replaced by the local court that established the guardianship.

• While most people establish trusts to transfer property to loved ones after they die, another popular reason for setting one up is to provide for the continual management of your financial affairs if you become disabled or incapacitated.

Warning Signs of Guardianship Abuse:

• The guardian “forgets” to file regular reports with the supervising court, or submits dubious ones.

• The guardian fails to file prompt and accurate tax returns.

• The guardian becomes the ward’s sole trustee or attorney-in-fact, thus avoiding court supervision.

• The guardian bills at professional rates for performing ordinary tasks, or seems to look for excuses to generate fees.

• The guardian deposits money from the ward’s funds into his own account.

• The ward seems to have lost a lot of money since the guardianship began.

• The guardian hires cronies, perhaps as attorneys and money-managers, on the ward’s behalf.

• The guardian sells real estate or other property at unusually low prices.

• The ward receives an eviction or foreclosure notice even though the ward owned the house.

• The guardian refuses to keep the ward’s family informed of the ward’s condition or attempts to stop them from visiting the ward.

• The guardian cannot explain why the ward has signed legal documents.

• The guardian seems to spend very little time with the ward.

Source: HALT: Guardians & Guardianships: A Primer

HALT is an organization of Americans for legal reform.
Phone: 1-888-FOR-HALT
(202) 887-8255
Fax: (202) 887-9699
1612 K Street, NW Suite 510
Washington, DC 20006

See also:
Red Flag Warning Signs
Ten Dirty Tricks of Guardians

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