Tag Archives: successor

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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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Removing a Personal Representative: How to Appoint a Successor

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Removing a Personal Representative How to Appoint a SuccessorIn the last few posts, we’ve looked at the first two steps in removing an ineffective personal representativegathering evidence and petitioning the court. Once these steps are completed, you will need to appoint a successor. You’ll want to be particularly careful in choosing a qualified replacement after going through the effort to remove an ineffective personal representative.

If you think you can do a better job yourself than the person who had been personal representative, think twice. Before nominating yourself for the position, you should understand the responsibilities and duties of a personal representative. While you may be qualified to fulfill the role, it may be more than you really want to deal with.

Serving as a personal representative in an estate is time-consuming and requires great attention to detail. You will need to work closely with both your probate attorney and a CPA to make sure that everything is done properly. This includes the inventory of the estate, detailed recordkeeping, annual accountings of the estate, and other details that you might not have considered.

Here are a few criteria to consider when deciding whom to appoint as personal representative:

A personal representative must be bondable. This means the person can be insured against fraudulent acts. Most states require this measure to protect the beneficiaries of the estate. The size of the personal representative bond must equal the amount of the estate’s estimated value. (For instance, you would need to have a net worth of $5 million in order to be bondable to administer a $5 million estate.)

A personal representative must have good business sense. Managing an estate requires a lot of the same skills needed to run a business. It’s a big responsibility. Personal representatives are held to higher standards in managing the estate than they would be in their own personal affairs. The courts take this responsibility very seriously.

A personal representative must be reliable and of good character. Choosing a personal representative who suffers from drug or alcohol addiction is an obvious bad move. And of course choose someone who does not have a criminal record.

The replacement personal representative is often appointed in the same petition that removed the original personal representative. You will work closely with your probate litigation attorney throughout the petition process.

A hearing will be scheduled after the petition is filed with the court. Depending on the case, the petition process can require several hearings that will eventually lead to the trial. (Actually, in probate court, the trial is called an evidentiary hearing.)

Unfortunately, the process of appointing a new representative is rarely quick. In uncontested cases with ample evidence, the case can be resolved within a few weeks. However, it usually takes several months to resolve the issue in contested cases.

Petitioning to replace a personal representative can be an emotional and overwhelming task. The guidance and assistance of a lawyer familiar with probate litigation can help make the process less challenging (and less lengthy). Look for a skilled litigation attorney to be your advocate in protecting your inheritance, and to make a difficult time easier for you and your family.

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