Category Archives: Power Of Attorney

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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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What are the Duties of a Personal Representative?

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What are the Duties of a Personal RepresentativeA good estate plan covers key life decisions such as what happens to your home and other assets if you die. It also addresses who will care for your children and financial assets if you pass away. Your personal representative will be the one to make the necessary decisions to carry out your wishes.

The role of personal representative is a big responsibility. Settling the estate of a deceased person requires attention to detail. It’s important to select someone who is qualified for this position regardless of your net worth.

Specific duties and responsibilities can vary slightly from state to state. I practice in Arizona, but in this two-part overview, you’ll be able to get a sense of the duties of a personal representative, regardless of where you live in the United States.

  1. Act as personal representative. Perform fiduciary duty of fairness and impartiality to the beneficiaries and to the creditors, to be cautious and prudent in dealing with the state assets.
  2. Gather, control and manage estate assets. This is not moving into the deceased parent’s house and taking over assets for personal use. The personal representative oversees the execution of the will and makes sure that the assets are distributed according to the will.
  3. Provide notice of the appointment. You will need to notify your state’s revenue department and all of the heirs and devisees that you have been appointed. These heirs and devisees have four months to contest the probate.
  4. Provide notice of the admission of the will to probate. This is a form that gets filed with the court and delivered to those involved in the estate. It explains the duties and responsibilities of a personal representative.
  5. Mail copies of the order to the personal representative. You must mail copies of the order to the personal representative to the heirs and devisees.
  6. File proof of compliance. A notarized statement must be filed with the court affirming that the order to the personal representative was sent out.
  7. Publish notice to creditors with the court. You will need to notify creditors that they have a certain period of time to file a claim and give them instructions on how to file and pursue being paid.
  8. Protect assets. It is your responsibility to secure and keep valuables safe.
  9. Determine whether there are any statutory allowances. Statutory allowances can include a homestead allowance, exempt property allowance and a family allowance.

We will continue with this list in our next post. This is an important part of estate-planning. It doesn’t have to be complicated, but it does help if you have a sense of what the roles and responsibilities of a personal representative are.

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