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In several chapters, we have discussed various types of powers of attorney. But what if you have decided instead to petition for guardianship? This article will focus on the most common types of guardianship.
Technically, there are many different types of guardianships, such as guardianship of the person, guardianship of the estate, guardianship of both the person and estate, plenary guardianship, limited guardianship, temporary guardianship, standby guardianship, and short-term guardianship.
Although there are many different types of guardianship, I want you to focus on two key distinctions:
From the words themselves – estate, person, limited, plenary (full) – you can intuitively sense how these guardianships differ.
Note: Some states call guardians of the estate conservators.
A guardian of the person is appointed when the person with a disability cannot make or communicate responsible decisions regarding their personal care. The guardian of the person's responsibilities is similar to what you are already doing as a parent:
A guardian of the estate is appointed when the person with a disability cannot make or communicate responsible decisions regarding the management of their estate or finances. Guardianship of the estate is typically only necessary if your child owns assets. Note: The court typically does not count your child’s SSI or other Social Security cash benefits because you will likely manage those benefits as your child’s Social Security representative payee.
The guardian of the estate, subject to court supervision, manages the assets of the person with a disability and makes expenditures for the benefit of the person with a disability. Most jurisdictions require the guardian of the estate to post a bond, file an inventory of the assets, an annual budget, and file periodic accounts of the estate’s receipts and disbursements. The estate guardian may be held liable for improperly managing estate assets. Parents usually hire an attorney to help them comply with the court procedures and rules.
If you have set up a third-party special needs trust for your child (see Part III of this book), the trustee (often you, the parent) manages the assets in the trust for your child. Even though your child is the beneficiary of the trust, your child does not control or own the trust assets. Therefore your child does not need a guardian of the estate to manage the trust assets.
The second key distinction in guardianship is between limited and plenary guardianship. "Plenary" is defined by the Merriam-Webster dictionary as "complete in every respect: absolute, unqualified plenary power." I think of plenary guardianship as “full” guardianship. For example, if you are the plenary guardian of the person for your child, in general, you have the authority to make all the decisions for your child’s personal care, subject to court supervision. Similarly, if you are the plenary guardian of the estate for your child, in general, you have the authority to make all the decisions regarding your child’s estate, subject to court supervision.
Most of my clients who pursue guardianship petition for plenary guardianship. The vast majority of these parents would not petition for guardianship unless their child lacked the total capacity to make their own decisions. The parents want the full guardianship authority to make all their child’s decisions to protect their child.
However, plenary does not mean you have unlimited powers as a guardian. For example, many state guardianship statutes do not give the guardian of the person the authority to make the following decisions without first asking for court approval:
If you plan to petition for plenary guardianship for your child, you should ask your attorney what powers as the guardian you will not have unless you first obtain court approval.
Limited guardianship limits the guardian's powers. Your child has partial decision-making capacity. You are petitioning the court for permission as guardian to make decisions for your child in specific limited areas regarding your child’s personal care or finances. In all other areas, your child has legal autonomy to make decisions.
Limited guardianship is very appealing from a civil rights perspective. The person with a disability is not adjudicated incompetent and reserves all their civil rights and decision-making authority not given to the limited guardian. Limited guardianship is finely tuned to the person with a disability's strengths and weaknesses.
Although limited guardianship sounds very appealing, in my practice, it is used by parents infrequently. Why?
First: If your child needs a guardian and lacks total capacity to make their own decisions, you will likely want the “full” authority to make all your child’s decisions. On the other hand, if your child has the mental capacity to sign powers of attorney, why get caught up in the court process of limited guardianship when your child can sign powers of attorney instead?
Second: Limited guardianship court orders can be challenging to write. It can be hard to delineate which powers the guardian should have and which powers are reserved for the person with a disability. Furthermore, many people must understand and rely on the court order – the person with a disability, the guardian, and all third parties (such as a doctor or a banker). The guardianship order has to be crystal clear for everyone to understand which powers the guardian has and which powers are reserved for the person with a disability.
Third: When petitioning for limited guardianship, your child's doctor must state the reasons in the Report of Physician for limited guardianship, delineating what your child can and cannot do. Many physicians fail to write such a nuanced report.
Fourth: If the limited guardian does not have a particular authority in the court order but needs the authority in the future, the limited guardian has to return to court to modify the court order.
Although limited guardianship (from my experience) is used relatively infrequently with parents who have a child with a disability, I see limited guardianships used most commonly in the following two situations:
However, if your child has partial mental capacity to make their own decisions, ask your attorney whether they think limited guardianship is appropriate and see if your attorney has a similar perspective and experience as me.
Although the major guardianship distinctions are – plenary, limited, estate, or personal, – there are other types of guardianship as well:
Occasionally, a temporary guardian is appointed for 30 days or until the actual guardianship hearing. The temporary guardian is to protect the person with a disability during the gap period between the filing of the petition and the hearing and appointment of the guardian. If a temporary guardian is needed, it can usually be obtained in an emergency in a few days.
Temporary guardianship is a streamlined version of guardianship without all the due process steps. A temporary guardian is only utilized when demonstrable and immediate potential harm to the person with a disability is evident. In your case, temporary guardianship will probably not be necessary because there is no immediate potential harm to your child during the gap between petitioning for guardianship and the actual hearing. Temporary guardianship is more common with elderly clients who do not have mental capacity, and a guardian needs to make an emergency medical decision or protect the older person’s estate.
Ask your attorney about standby and short-term guardianship if you petition for guardianship. Once you become a guardian, short-term guardianship allows you to fill out and sign (with witnesses) a statutory form, without court supervision, appointing a guardian to act in your place. For example, if you were the guardian of your child and you knew you were going into the hospital for major surgery and subsequent very involved rehabilitation, you could fill out the form and say from such and such date until such and such date you are appointing so and so to be a guardian. My clients often use a short-term guardian if they take a trip out of the country, and will be relatively inaccessible. Standby guardianship is a way of appointing a “standby guardian” if you become incapacitated to provide continuity of protection. Most of my clients do not go through the court process of appointing a standby guardian, but they do fill out a standby guardian document that tells the court who they want to be the guardian in the event of their incapacity.
In all cases, the judge determines your child's guardian. In your will, you will name who you want to be guardian for your child after your death. In the standby guardian document, you can name who you want to be the guardian if you become incapacitated. Although the judge will greatly consider your preference, the ultimate decision rests with the judge.
In several chapters, we have discussed various types of powers of attorney. But what if you have decided instead to petition for guardianship? This article will focus on the most common types of guardianship.
Technically, there are many different types of guardianships, such as guardianship of the person, guardianship of the estate, guardianship of both the person and estate, plenary guardianship, limited guardianship, temporary guardianship, standby guardianship, and short-term guardianship.
Although there are many different types of guardianship, I want you to focus on two key distinctions:
- The difference between guardianship of the estate or of the person; and
- The difference between a limited or plenary guardianship.
From the words themselves – estate, person, limited, plenary (full) – you can intuitively sense how these guardianships differ.
Note: Some states call guardians of the estate conservators.
A guardian of the person is appointed when the person with a disability cannot make or communicate responsible decisions regarding their personal care. The guardian of the person's responsibilities is similar to what you are already doing as a parent:
- Develop the ward's (person with a disability) maximum self-reliance and independence;
- Be responsible for the ward's support, care, comfort, health, maintenance, and education and such professional services as are appropriate;
- Make sure the ward gets the appropriate medical, dental, grooming, and other services;
- Decide where the ward will live.
A guardian of the estate is appointed when the person with a disability cannot make or communicate responsible decisions regarding the management of their estate or finances. Guardianship of the estate is typically only necessary if your child owns assets. Note: The court typically does not count your child’s SSI or other Social Security cash benefits because you will likely manage those benefits as your child’s Social Security representative payee.
The guardian of the estate, subject to court supervision, manages the assets of the person with a disability and makes expenditures for the benefit of the person with a disability. Most jurisdictions require the guardian of the estate to post a bond, file an inventory of the assets, an annual budget, and file periodic accounts of the estate’s receipts and disbursements. The estate guardian may be held liable for improperly managing estate assets. Parents usually hire an attorney to help them comply with the court procedures and rules.
If you have set up a third-party special needs trust for your child (see Part III of this book), the trustee (often you, the parent) manages the assets in the trust for your child. Even though your child is the beneficiary of the trust, your child does not control or own the trust assets. Therefore your child does not need a guardian of the estate to manage the trust assets.
The second key distinction in guardianship is between limited and plenary guardianship. "Plenary" is defined by the Merriam-Webster dictionary as "complete in every respect: absolute, unqualified plenary power." I think of plenary guardianship as “full” guardianship. For example, if you are the plenary guardian of the person for your child, in general, you have the authority to make all the decisions for your child’s personal care, subject to court supervision. Similarly, if you are the plenary guardian of the estate for your child, in general, you have the authority to make all the decisions regarding your child’s estate, subject to court supervision.
Most of my clients who pursue guardianship petition for plenary guardianship. The vast majority of these parents would not petition for guardianship unless their child lacked the total capacity to make their own decisions. The parents want the full guardianship authority to make all their child’s decisions to protect their child.
However, plenary does not mean you have unlimited powers as a guardian. For example, many state guardianship statutes do not give the guardian of the person the authority to make the following decisions without first asking for court approval:
- To consent to psychotropic medications against the objections of the person with a disability;
- To admit a person with a disability into a mental health facility against their wishes;
- To move the person with a disability into a residential facility;
- To consent to experimental surgery or sterilization;
- To sell the person with a disability’s real estate;
- To sell the person with a disability’s personal property.
If you plan to petition for plenary guardianship for your child, you should ask your attorney what powers as the guardian you will not have unless you first obtain court approval.
Limited guardianship limits the guardian's powers. Your child has partial decision-making capacity. You are petitioning the court for permission as guardian to make decisions for your child in specific limited areas regarding your child’s personal care or finances. In all other areas, your child has legal autonomy to make decisions.
Limited guardianship is very appealing from a civil rights perspective. The person with a disability is not adjudicated incompetent and reserves all their civil rights and decision-making authority not given to the limited guardian. Limited guardianship is finely tuned to the person with a disability's strengths and weaknesses.
Although limited guardianship sounds very appealing, in my practice, it is used by parents infrequently. Why?
First: If your child needs a guardian and lacks total capacity to make their own decisions, you will likely want the “full” authority to make all your child’s decisions. On the other hand, if your child has the mental capacity to sign powers of attorney, why get caught up in the court process of limited guardianship when your child can sign powers of attorney instead?
Second: Limited guardianship court orders can be challenging to write. It can be hard to delineate which powers the guardian should have and which powers are reserved for the person with a disability. Furthermore, many people must understand and rely on the court order – the person with a disability, the guardian, and all third parties (such as a doctor or a banker). The guardianship order has to be crystal clear for everyone to understand which powers the guardian has and which powers are reserved for the person with a disability.
Third: When petitioning for limited guardianship, your child's doctor must state the reasons in the Report of Physician for limited guardianship, delineating what your child can and cannot do. Many physicians fail to write such a nuanced report.
Fourth: If the limited guardian does not have a particular authority in the court order but needs the authority in the future, the limited guardian has to return to court to modify the court order.
Although limited guardianship (from my experience) is used relatively infrequently with parents who have a child with a disability, I see limited guardianships used most commonly in the following two situations:
- Limited guardianship is sometimes used for senior citizens who have been financially independent their entire lives, and now their mental capacity is declining. Often the triggering event for the limited guardianship is the senior citizen is being exploited financially on the internet. A limited guardianship is set up whereby the adult child has the power to manage assets over a certain amount, and the senior parent still has access to a checking account of a certain amount; or
- Limited guardianship is used for adult children with mental illness. Often, there is a sequence of events: a) The adult child with mental illness refuses to sign powers of attorney; b) The parents petition for plenary guardianship; c) The adult child contests the petition; and d) The agreed settlement is limited guardianship.
However, if your child has partial mental capacity to make their own decisions, ask your attorney whether they think limited guardianship is appropriate and see if your attorney has a similar perspective and experience as me.
Although the major guardianship distinctions are – plenary, limited, estate, or personal, – there are other types of guardianship as well:
Occasionally, a temporary guardian is appointed for 30 days or until the actual guardianship hearing. The temporary guardian is to protect the person with a disability during the gap period between the filing of the petition and the hearing and appointment of the guardian. If a temporary guardian is needed, it can usually be obtained in an emergency in a few days.
Temporary guardianship is a streamlined version of guardianship without all the due process steps. A temporary guardian is only utilized when demonstrable and immediate potential harm to the person with a disability is evident. In your case, temporary guardianship will probably not be necessary because there is no immediate potential harm to your child during the gap between petitioning for guardianship and the actual hearing. Temporary guardianship is more common with elderly clients who do not have mental capacity, and a guardian needs to make an emergency medical decision or protect the older person’s estate.
Ask your attorney about standby and short-term guardianship if you petition for guardianship. Once you become a guardian, short-term guardianship allows you to fill out and sign (with witnesses) a statutory form, without court supervision, appointing a guardian to act in your place. For example, if you were the guardian of your child and you knew you were going into the hospital for major surgery and subsequent very involved rehabilitation, you could fill out the form and say from such and such date until such and such date you are appointing so and so to be a guardian. My clients often use a short-term guardian if they take a trip out of the country, and will be relatively inaccessible. Standby guardianship is a way of appointing a “standby guardian” if you become incapacitated to provide continuity of protection. Most of my clients do not go through the court process of appointing a standby guardian, but they do fill out a standby guardian document that tells the court who they want to be the guardian in the event of their incapacity.
In all cases, the judge determines your child's guardian. In your will, you will name who you want to be guardian for your child after your death. In the standby guardian document, you can name who you want to be the guardian if you become incapacitated. Although the judge will greatly consider your preference, the ultimate decision rests with the judge.