After you are appointed by the Court, you have a lot of responsibilities to properly carry out your duties.  Here are some of the ongoing responsibilities of a guardian and conservator:

• Filing a report with the Court at 60 days and annually outlining your plans for the ward, their care, and their property,
• Filing a yearly report with the Court outlining the ward’s living situation, medical condition, how often you’ve visited them, what services they are receiving and related issues.
• Caring for the ward – making health care decisions, living decisions and decisions about how to manage their property for their benefit,
• Involving the ward as much as possible taking into account their condition and circumstances,
• Filing Roger’s Monitor reports annually, if you are also appointed in that capacity,
• In the case of a Conservatorship, fileing annual accountings showing what has occured over the last year with the property you are managing,
• Responding to any requests from the Court for more frequent recording.

A guardian or conservator is always subject to the oversight of the Court and can be penalized for failing to properly account for funds and monitor their ward.

(The term “ward” is used here for convenience. The legal term for someone under a guardianship is “incapacitated person” and for someone under a conservatorship is “protected person.”)

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

I talked about what a guardianship and conservatorship are, why one
or both would be needed, what the process is for obtaining them, what
the costs associated with them are, what families can expect when them
embark on seeking protective proceedings over a loved one, what the
responsibilities are of the guardian or conservator once they are
appointed, and most importantly, what some of the alternatives to these
proceedings are that can provide the elder or disabled person with the
support they need, while maintaining their rights and keeping family
relationships intact. 

I had a great time talking to Barbara about these issues, and hope to do it again soon.  

When you are ready  to put a plan in place for
yourself to insure that you won't need a guardian or conservator, even
if you become incapacitated, call me at 781-749-2284. 

And if you are the child of a parent who failed to make a plan and
is now incapable of handling their affairs, and you find yourself
running into roadblocks in talking with their doctors or dealing with
their finances, call me to find out what your options are. 

If you aren't able to tune-in at that time, the recording will be available for download. 

Sarah Palin's son Trig helps spark a national conversation

Sarah Palin's 5-month-old son, Trig, who has Down
syndrome, has sparked a national conversation about kids with special
needs: the extra care they require, available government benefits and the pros and cons of prenatal testing.

One topic that has gotten less attention is the financial stress
that parents often face. Many kids with special needs require financial
support throughout their lives, and while government assistance often
covers basic medical care, holding assets over $2,000 can make them
ineligible. That means advance financial planning, through wills,
estate planning, and trusts, can be essential to ensuring kids with
special needs have the support they require once they grow up.

"If [parents] fail to deal with these issues now, it will jeopardize
their child's quality of life down the road," says Tanya Harvey, an
attorney who focuses on special-needs planning in the Washington, D.C.,
law office of Bryan Cave.

Here are tips from leading experts in the field of financial planning for kids with special needs on how to get started:

1) Establish legal guardianship.
After a child reaches the age of 18, he is considered an adult. But
some kids may still need a guardian, says Harvey. One of her tests
includes asking whether a child would impulsively buy a pretty diamond
in a store window. If the child shouldn't be held responsible for such
a purchase, then he needs to have a legal guardian, or else the
contract would be binding.

Karen Greenberg, director of Prosperity Life Planning, a nonprofit
that teaches financial planning to families of children with special
needs, along with her husband and associate director, Jaret Vogel, are
urging Congress to adopt a special-needs tax credit that
would help parents pay for the cost of establishing such a
guardianship. Their proposal would provide up to $5,000 in tax credits
to offset the cost of legal fees.

Families often can't afford to set up a guardianship, which involves
court expenses and doctors' fees, so they don't do it, say Greenberg
and Vogel.

2) Describe your child in writing. Greenberg recommends writing down a "minibiography" of
children that could be given to any future guardians or caretakers. It
should include medical information like allergies but also personal
preferences, goals, and details about friends.

3) Protect your child's eligibility for public benefits.
Medical care can be so expensive that even relatively wealthy families
may need to rely on Medicaid and Social Security income. Because having
more than $2,000 in assets threatens that eligibility, "you want to
make sure that if your child is going to receive any money, that it's
in a special-needs trust so it doesn't disqualify them," says Harvey. A
lawyer or financial professional can help establish a special-needs
trust, which doesn't count against the $2,000 limit. Money left to the
child through a will should be directed into this trust.

Parents often choose to set up a trust that goes into effect when
they die, says Harvey, to allow them flexibility to spend that money in
different ways in the meantime. But families may be better off setting
up the trust immediately if a grandparent wants to leave money to the
child, for example.

Greenberg adds that another benefit to establishing a trust is that
the money is then considered separate from the parents' assets, which
protects it from creditors and divorce settlements.

4) Consider insurance policies.
Life insurance that pays out upon the death of the second parent—often
called "last to die" policies—can help parents ensure their child has
enough money after they both die without straining their budgets too
much beforehand.

When Greenberg, who has an autistic son, examined her budget several
years ago, she decided to purchase such a policy. It pays out $650,000
on the death of Greenberg or her former husband, whichever comes
second, for about $2,000 a year. In addition, for years, she tucked
away about $400 a month into a special-needs trust, which now holds
around $55,000. That means that if both she and her former husband were
to die, their son would have the $650,000 life insurance payout and the
$55,000 trust. Together, she calculates, that will generate an income
of around $35,000 a year—enough to pay the bulk of his expenses.

5) Avoid common family-related mistakes.
"A lot of parents say, 'How about if I give money to a relative?'" says
Harvey. But doing so is a mistake, she says, because not only is the
relative not legally bound to spend that money on your child but a
creditor or divorce settlement could take it.

Greenberg recalls looking into her options for her son in the 1980s,
when the common wisdom held that parents should leave money to their
other children, who would then be expected to care for their sibling
with special needs. But Greenberg doesn't like the idea of burdening
siblings, who have often already experienced so much stress.

Family members and friends planning to leave money to a child with
special needs should also be encouraged to do so through a
special-needs trust instead of leaving money directly to the child,
which could interfere with benefits eligibility. Grandparents may even
want to have their wills looked over by an attorney to make sure any
gifts don't threaten that eligibility.

Source: US News & World Report.

(This post referred to the new certificate effective in early 2008.)

The Massachusetts Probate Courts have come out with a new, much more comprehensive, medical certificate to be used when petitioning for a guardianship of a person.  The old form was 2 pages, and consisted mostly of blank lines, which left it up to the doctor filling the form to come with what information he or she thought was needed.  The new form is 8 pages, and requires much more detailed information from the doctor.  It also requires the doctor to specify whether a limited guardianship or a full guardianship is needed.

Click here to access the new Medical Certificate. Download medcertgdn31408.pdf

For comparison, here is the old certificate: Download OldMedicalCert.pdf

Quite a difference.

Here's the link to the official announcement on the Probate Court Website.

The guardian also has the responsibility to account for all of the ward’s income and expenses. In the beginning of the guardianship, the guardian files an inventory with the Court of all the wards assets, and after that the guardian files an annual accounting with the Court showing how much money came in, where it came from and where it went. At the end of the guardianship, the guardian must file a final accounting with the Court.

Being a guardian is  a big responsibility, and not one to be taken lightly. If there is time to plan before a crisis, you can save so much time and money, and prevent a lot of family conflict, by having some straight forward documents executed that spell out your wishes.  If you think your aging parent needs a guardianship, your lawyer can work with you to accomplish that. What plan do you have in place in the event of your own incapacity?

A guardianship is a legal relationship whereby the Probate and Family Court give the guardian the power to make personal and financial decisions for the ward (the person who is no longer competent.)  A guardian can be appointed when someone is incompetent due to mental illness (including dementia or Alzheimer’s disease), mental retardation, or physical incapacity.

Below are some of the steps that must be
taken. 

First, you should have your parent or loved one  evaluated by a
physician to determine if, in fact, they are unable to care for
themselves.  In some cases, such as when someone has had a stroke and
is completely incapacitated, this may be clear, whereas in other cases,
such as someone with memory loss, it may be less clear whether the
person is still able to handle their own affairs. 

If the physician determines that the proposed ward is unable to care
for themselves, you would then need to file a petition in the Probate
Court requesting that a guardian be appointed. Two petitioners must sign the petition, and the proposed guardian must file a bond with the Probate Court.  The Court will require that the proposed ward and their heirs receive notice of the petition.   The Court sets a date by which anyone, including the proposed ward, may object to the guardianship. Then, a hearing is held and the judge decides whether a guardian should be appointed. 

A temporary guardian can be appointed for 90 days, or a permanent guardianship can be establish. A guardianship lasts until the ward can establish that he or she is competent,  the ward passes away, or the guardian resigns or passes away or is removed by the Probate Court.