Category Archives: Guardianship

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Removing a Guardian with Mental Health Powers

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Removing a Guardian with Mental Health PowersIt can be emotionally draining for you when your loved one’s personal rights have been limited. When age, mental or physical illness or other situations affect the ability of the loved one to maintain independence, important decisions (such as choice in doctors, healthcare treatments, where to live, whether he or she can drive a car and what family and friends can visit) need to be made by someone else.

That’s where guardianship can help. To review, a guardian is a person granted the legal authority and responsibility to help another person make decisions that affect his or her wellbeing. A guardian with mental health powers has authority to make decisions specific to mental health care, including whether the ward needs inpatient hospitalization.

Unfortunately, a guardian may not always do a good job fulfilling the delicate and sometimes confusing responsibilities of the position, and may be putting the protected person at risk.

If you find yourself in a situation where a guardian is not acting in the best interest of your loved one, you have the right to petition the court to remove the current guardian and to appoint a replacement.

If this happens, you will need to supply the court with a professional evaluation of the protected person. The quickest way to work with HIPAA and other confidentiality laws (HIPAA refers to The Health Insurance Portability and Accountability Act of 1996) is to seek assistance from an experienced probate attorney to file a motion with the court that will require the ward to receive an additional psychiatric examination.

This ruling process typically takes about two or three months. If the situation is an emergency, your attorney can help you file for emergency status to receive a ruling sooner.

The court will make a ruling for removing a guardian and appointing a successor based on the best interest of the ward. This means that the court doesn’t necessarily need to find that the current guardian has acted inappropriately. The court is interested in what is best for the protected person and will support replacing a current guardian with a successor who is better qualified.

The most common mistake that guardians make is not disclosing information to the family and lawyers. If you’re acting as a guardian with mental health powers, make sure you keep lines of communication open between your ward’s family and attorney. Maintain copies of all letters and reports that are sent to involved parties. Preserve meticulous records of expenses you’ve made for which you’ve used the ward’s resources.

Whether you’re a guardian in need of help navigating the responsibilities of the position, or a family member concerned about the care your loved one is receiving, don’t be afraid to talk to an attorney. Attorneys’ experience in navigating the legal system can help you make sure your loved one receives proper care and give you peace of mind.


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Guardianship with Mental Health Powers

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Guardianship with Mental Health PowersDisability, physical or mental illness or alcohol or drug abuse can limit a person’s ability to live an independent life. In such cases, a guardian may be appointed to take care of everyday tasks such as housing, education, medical care, food and clothing. However, this post discusses a guardianship with mental health powers, meaning that the guardian has additional powers to deal with psychological or psychiatric issues.

To review, a guardian has the legal authority and responsibility to make all these decisions on behalf of another (who is legally referred to as a ward, incapacitated person or protected person) to protect his or her well-being. A guardian who has powers over mental health has additional authority to admit the protected person for inpatient mental-health treatment.

Admitting a ward for inpatient therapy is a serious responsibility. Inpatient treatment means the ward will not be free to leave. This limits or removes a U.S. citizen’s constitutional right to liberty and due process. Taking such an action is, understandably, a measure of last resort.

A guardian with “mental health powers” has other responsibilities and obligations of that include:

Making decisions concerning the ward’s mental-health needs. This includes the decision to place a ward in a mental-health treatment facility.

Seeking the advice and assistance of qualified mental health professionals.

Exploring alternatives to inpatient hospitalization. Inpatient hospitalization should be the last resort.

Giving notice of placement. That is, notifying the ward’s attorney of placement of the ward in an inpatient treatment facility within 48 hours.

Providing assessment of the appropriateness of placement. The guardian is responsible to make sure assessment is done every 30 days. A copy of the assessment must be mailed to the ward’s attorney.

Giving the facility the ward’s attorney’s contact information. If the ward is admitted to an inpatient behavioral health treatment facility, the guardian must make sure the facility has the address and telephone number of the ward’s attorney.

Transferring a patient to least-restrictive care once and if inpatient care is no longer needed. The guardian must find alternative care within 10 days after notification from the inpatient facility that the ward is no longer in need of such care. If there are issues in finding alternative placement, the guardian or medical director or both may request the court hold a hearing for assistance.

The longest time that a guardian can admit a ward to inpatient psychiatric facility for mental health care is one year. If inpatient care is required after the year is up, the court will need to grant authorization for an additional year.

If you have questions about guardianship with mental health powers, contact our office. This is a complicated area of law and can be confusing, even for lawyers. We have the experience to help you safely navigate this often-challenging part of life.

In the next post we will look at how to remove a guardian with mental health powers.

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How to Remove a Guardian

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How to Remove a GuardianIt’s hard watching loved ones age. Their loss of independence can come as quite a blow for their families, and such challenges can become even more difficult if the guardian trusted with the care of a loved one is not fulfilling the responsibilities of the position.

A guardian is a person appointed by the court to make decisions about a protected person’s well-being (the “ward”).

A few of the responsibilities of a guardian, include ensuring safe and clean living arrangements, seeing to appropriate medical care (including compliance with taking of necessary medications)and determining whether or when family members or other people should be able to visit the ward.

If you suspect or see that something isn’t right with the guardianship, you should find an experienced probate litigation attorney to help you file a petition with the court or to contact Adult Protective Services (APS). Both of these bodies take the fulfillment of a guardian’s responsibilities very seriously.

Sometimes, a guardian might be doing an adequate job, but the court will remove a guardian and appoint a successor if it deems that another person is better able to act in the best interest of the ward.

Let’s look at an example where the need for a new guardian is not due to negligence but to circumstance. Sarah, a 75-year-old widow suffering from advanced dementia, is living in a nursing home. She needs a guardian to help with daily living and healthcare. Her son, who was originally appointed as her guardian, lives an hour away from his mother and has his own a busy work and family life. He’s finding it more and more difficult to remain as his mother’s guardian while also seeing to the care of his own family.

Sarah’s sister Beth, who is of sound mind and health, is a registered nurse who happens to live just 15 minutes away from Sarah’s nursing home. Beth visits Sarah daily and is able to be there quickly in an emergency. She has more time to devote to the care of her sister than does Sarah’s son.

It would be in the best interest of the court that Sarah’s son be removed as her guardian, though he has not abused his position, and to appoint Beth as the new guardian.  Sometimes another party is better able to care for the ward.

If a guardian is doing a poor job (whether intentionally or unintentionally), in most cases the court will simply to remove a guardian and appoint a successor. If the case is a more amicable transfer of responsibilities as in the example of Sarah and her son, the court will help with the legalities to relieve the original guardian of the responsibilities and transfer the legal authority to the new guardian.

If you’re serving as a guardian, focus on maintaining open lines of communication with your ward’s family and lawyer. Keep detailed records of both letters and reports of care and receipts for expenses paid for with the ward’s resources.

If you have questions about the process of removing a guardian, please contact our office. We’d love to help relieve you and your family of the burden of navigating the legal system as you seek care for your loved one.

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What Is a Guardianship?

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What Is a GuardianshipSince life expectancy has increased over the last two decades., a growing group of Americans will likely need some kind of long-term assistance. An important part of preparing for the future should you become unable to care for yourself is designating a health care agent and (if needed) a legal guardian. Having a health care power of attorney can usually avoid the need for someone to get appointed as a guardian through the court system. However, sometimes despite your best attempts at planning, someone will need to go to court and be appointed as your guardian.

A legal guardianship is a legal action in which someone is appointed by a court as a guardian to make decisions regarding healthcare and personal well-being for another person (who, in legal terms, is referred to as an “Incapacitated Person” or ward). These decisions can include living arrangements, medical care and whether the family should be able to visit.

Guardianship is a big responsibility, and it can sometimes be challenging. For example, I once represented a man who was caring for his mother as her legal guardian. They both lived in the Phoenix area. This man’s brother and sister, who lived in Michigan, wanted their mother to move out to live with them. Their mother was being well taken care of and was happy in Phoenix. This could have proved difficult, with different children wanting different things for their parent. But through working with my client on aspects of his guardianship, we were able to arrange a visitation schedule for the family, similar to child-custody arrangements common in divorce situations.

Guardianship is not that well-known a function among the general public. And common misperceptions and misconceptions exist.

• One is that the guardian is legally obligated to use personal resources to support the ward. This is incorrect. A guardian’s legal obligation is to use the ward’s resources to support the ward, not the guardian’s personal assets.

• Another is that the guardian assumes liability for the actions of the ward. This is not true except in cases where, say, the guardian gives a car or a gun to the ward. If the ward crashes the car or shoots someone with the gun, the guardian can be held liable if the guardian should have known that allowing the ward to have the car or gun was dangerous.

A guardian is required to sign a document called an Order to Guardian and Acknowledgement, which outlines the guardian’s responsibilities. A guardian should this document carefully and refer to it during the guardianship to prevent errors, and ensure that all responsibilities are being followed.

Here are two common mistakes that many guardians make:

  1. Failure to file an annual guardian’s report with the court. If you do not file this report, you will have to attend a hearing and explain why the report was not filed.
  2. Failure to restrict access to family and others when appropriate. This can justify removal of the guardian if the guardian is acting out of spite or maliciousness (as opposed to protecting the ward from people who may be dangerous).

As we age, our needs change. A health care power of attorney is an important part of a well-planned estate to make sure a person’s needs will be met as they arise. But sometimes this document can’t be found, or there is a dispute over who should be making the decisions.  In that case, someone needs to go to court to be appointed as a guardian. Just as it can be a delicate situation to consider making a will or plan an estate, it can be difficult to approach one’s parents about needing help now or in the future. It’s important to be proactive and address these issues sooner rather than later.

That’s where you come in. Remind your parents that you care about them and that you want to do what’s best to promote their health and well being, both today and in the months and years to come. And sometimes you need to make the tough call and get appointed as guardian even if your mom or dad does not want to give up control over their personal or health care decisions.

Remember that you aren’t alone. This is a common situation faced by adult children caring for their elderly parents.

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Resolving Disputes Involving Guardianships and Conservatorships

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Resolving Disputes Involving Guardianships and ConservatorshipsDisputes involving guardianships and conservatorships can be confusing and overwhelming for most people. The single biggest mistake I see in this area is people not consulting a probate litigation attorney. An experienced attorney will not only be familiar with the applicable statutes and case law, but will also know the applicable probate rules. Here is what you need to know about resolving disputes involving guardianships and conservatorships.

Guardianships and conservatorships is one of those areas of law that the uninitiated simply cannot tackle alone. People serving as guardians or conservators find themselves in a position where they are expected to be an expert on a complex topic they likely know little about. This is fertile ground for anger, surprises, greed and revenge among heirs and family members. While some guardianship and conservatorship matters are settled peacefully and amicably among family members and heirs, many times the actions by the guardian or conservator can engender disputes and bad feelings.

I recently worked with a prominent family in the Phoenix area to help the adult children resolve a dispute about their mother’s money. It turned out that one sister who had been named trustee and financial (general) power of attorney was mismanaging funds. To rectify this, I helped the other siblings file for conservatorship. We were able to obtain copies of all the financial documents and track all the funds that had been held in the mother’s trust and LLC.

After examining the financial documents, we could then force the sister who had been serving as trustee and financial power of attorney to pay back the money she’d stolen from the trust and business. We then replaced her with a professional trustee. (My clients became co-conservators.) We resolved this dispute in a cost-effective and family-oriented manner while maintaining the family’s privacy, thus avoiding public drama that would have tarnished the family name and reputation.

Conservators and guardians make important decisions on behalf of a loved one. But if the conservator or guardian is not living up to the responsibilities of the position you do have options. A probate litigation attorney can help you assess your unique situation and give you direction.

If you are an heir or if you’re serving as a guardian or conservator and you’ve found yourself in a dispute, don’t wait and hope the problem will go away on its own. Enlist the help of a probate litigation attorney right away.

In our next post we will look at solving disputes that involve trusts. If you have questions about guardianships and conservatorships, or other probate issues, please comment below or contact our office.

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Pitfalls of Estate Planning: When Assets Are Used for Personal Benefit

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When Assets Are Used for Personal BenefitA trustee must never use the assets of a trust for personal benefit (unless this is specifically permitted by the trust). There’s really no wiggle room here. Trustees are held to the highest legal standards.

If you’re serving as a trustee, conservator or guardian, it’s important to clearly understand the duties of your position to be certain that you are performing your duties correctly and to protect yourself and reduce your liability in case of error.

Most cases where assets are mismanaged involve trusts. This is because trusts are normally unsupervised. As a result, it’s not uncommon for a trustee to neglect providing beneficiaries with annual accountings or to keep detailed bookkeeping records. Laws vary by states, but in Arizona, current law requires that a trustee give annual accountings and provide beneficiaries sufficient information to protect their interests.

Some trustees, unfortunately, take the breach of duty further and use an estate’s funds for their personal use. Taking family vacations, buying cars or paying off a personal mortgage are all examples where a trustee has breached fiduciary duty by misusing trust assets.

Here are the three biggest mistakes trustees make when managing trust assets:

  1. Failing to keep records.
  2. Taking unauthorized personal “loans” from the trust.
  3. Using assets for personal use – and thinking they won’t get caught.

A trustee who mismanages trust assets—whether intentional or unintentional—can face severe legal consequences. But you should know that if you’re serving as a trustee and don’t understand your responsibilities and duties, you don’t have to do it alone. An attorney with experience in trust management can help you avoid making costly mistakes and ensure that you’re aware of your responsibilities.

From the other side, if you’re a beneficiary and you suspect the trustee is mismanaging assets, don’t wait to take action. Seek legal counsel from a skilled probate attorney.

Settling an estate is a complex process. Probate court offers resources and recourse for those who are working to settle a loved one’s estate. We’d love to help make this process easier for you and your family. Give us a call with any questions about how you can properly manage a trust, and what you can do when trust assets are being mismanaged.

In the next post, we’ll look at how to deal with estate conflict in probate disputes.

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How to Get a Physician’s Report for a Guardianship or Conservatorship

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How to Get a Physician’s Report for a Guardianship or ConservatorshipCaring for an aging parent or loved one can be challenging. Especially when one or both parents become unable to care for their health and finances. In these situations, it may be necessary to seek a guardianship or conservatorship to help your parents get the care and support they need.

Obtaining a physician’s report is an important step in applying for guardianship or conservatorship. In the State of Arizona, a physician’s report can be completed by a physician, a registered nurse, a psychiatrist or psychologist. The content of the physician’s report (which varies from state to state) will be used to determine whether the situation requires a guardianship or conservatorship.

Here are three important steps you need to take before the court can appoint a conservator or guardian:

  1. Take action. If a loved one is not paying bills, starts to make poor financial decisions or isn’t receiving the healthcare he or she needs, you should be proactive. Learn more about what you can do to help. Frequently aging parents will resist a child’s urging to get help. But be persistent. You are their best advocate.
  2. Get a physician’s report. If a parent refuses to be examined by a physician, you can enlist the support of a social worker or anyone else familiar with the situation by getting a statement about what’s going on. The court can use this statement to appoint a physician or other professional to make an evaluation.
  3. Prepare for a court hearing. Petitioning for guardianship or conservatorship requires a lot of paperwork. Remember to include the physician’s report and other supporting documentation. It’s much easier to spend a little extra time preparing for the hearing than dealing with the frustration and delay of rescheduling a hearing because you didn’t have all the necessary paperwork. Make a checklist of what needs to be included; if you are working with an attorney, the attorney will help with the details.

If you’re seeking a guardianship or conservatorship for a loved one, or if you’re concerned about a current guardian or conservator, it’s important to know how to get a physician’s report in order to establish your case.

If you have any questions about how to get a physician’s report or about guardianships or conservatorships contact our office. We’d love to help.

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Estate Planning: What Is a Guardianship?

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What Is a GuardianshipAs one generation matures another one needs care. Children are suddenly faced with dealing with their aging parents. This shift of roles, however natural it may seem, can be difficult. Illness, injury or long-term condition can leave a parent or loved one needing a little (or a lot) of extra help.

Legal guardianship may be necessary to allow you to help your loved one(s) make the legal, financial and healthcare decisions that are needed for their well-being.

A legal guardianship comes with a number of responsibilities. First, let’s define a few terms:

Guardianship. The legal right given to a person who will be responsible for assisting a person who is deemed to be fully or partially incapable of providing for him- or herself.

Guardian. The person granted guardianship over an incapacitated person

Ward (called an Incapacitated Person in Arizona). A person who is deemed to be fully or partially incapable of providing for him- or herself.

A guardian makes decisions about how the ward lives. These decisions include:

  • It’s important to make sure your ward is getting regular, healthy meals. Malnutrition is common in the elderly.
  • Doctors’ appointments, administering medication, ensuring the ward gets regular checkups are all an important part of guardianship.
  • If your loved on is not safe living alone, it is the guardian’s responsibility to arrange and pay for housing from the estate funds or government benefits. (The guardian is not personally responsible for paying for this expense out of pocket.)
  • Annual reporting. Filing annual guardian reports with the court is also one of a guardian’s responsibilities.

The guardian should assist the ward in maintaining as much independence and autonomy as possible, and should consider the ward’s value system, religious beliefs, wants and desires when making decisions on the ward’s behalf.

Guardianship has its limitations, and it certainly isn’t a magic wand. As a guardian, you cannot force your ward to take medications or to be more compliant. But you can make a difference in the overall care of a ward. And in especially tough situations a guardian can work with the courts to get a court order to make sure the ward in question gets the care and support needed.

Acting as guardian for an aging parent or loved one is an important role. Loved ones may need your help with the most intimate care as they age, which can be demanding and draining. And fraught with uncertainty regarding your responsibility and your ability to take action.

If you have any questions about legal guardianships, I’d love to help. Leave a comment below or contact our office.

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