The legal process for establishing a guardianship over a family member is costly, but can be substantially, if not completely, avoided with an estate plan. One of the first expenses that arises when seeking a guardianship over a loved one is the cost of retaining an attorney. The guardianship process is complex and every case involves its own set of unique legal issues. Having a professional with the knowledge and skills to walk you through the process will save you from mistakes, wasted time, and wasted resources. In addition to your attorney's fees, there are court filing fees, expenses in obtaining a bond, and the medical evaluation expenses. The court will also appoint an attorney ad litem to act as the voice of the individual whom the guardianship is being established over (commonly referred to as the “proposed ward”). So long as the proposed ward has sufficient funds, the proposed ward's funds are usually responsible for paying for these costs.
Once the guardianship is created, there are also administrative costs during the guardianship. A guardianship requires by law constant court supervision. The purpose behind the court's supervision is to ensure as best as possible that the guardian is acting in the ward's best interest. However, the downside of court supervision is that the guardian has several obligations to the court. Many of these obligations are court filings and require an attorney's assistance.
The costs mentioned above are associated with an ordinary, and typical guardianship proceeding and do not factor in the cost of litigation during the guardianship initiation. Litigation commonly arises when family members disagree about who should be the guardian, and, to be frank, this litigation exponentially raises the costs of creating a guardianship. A general rule in probate law is that every estate stands on its own feet which means generally that the estate is responsible for paying estate expenses. A good-faith dispute about whether one individual is better suited than another to serve the proposed ward's best interest is typically viewed as an estate expense and therefore paid by the ward's estate. When this guardianship fight occurs there are several attorneys involved: the attorney ad litem who represents the proposed ward, the attorney representing the original guardianship applicant, and the attorney representing the contestant. All three attorneys are paid from the proposed ward's estate generally. If the guardianship litigation is contentious enough, the court may even appoint another individual to represent the proposed ward's best interest, a guardian ad litem. It's easy to imagine how three sets of attorney fees become enormous. A quick Google search will produce many stories where attorney's fees nearly deplete a ward's estate because the family was involved in a long and extremely contentious dispute over who should be the guardian.
One of the goals of estate planning is to mitigate, if not completely avoid, unwanted expenses. A typical estate plan package should include, among other documents, a Power of Attorney, a Medical Power of Attorney, and a Declaration of Guardian. The two power of attorney documents can avoid the need for a guardian since the agent acting under the documents has all of the necessary powers to manage and care for the principal's personal and financial well-being. (The term principal is commonly used to identify the individual signing the power of attorney documents). There are rare situations where a guardianship is needed despite the power of attorney documents. The agent named in those documents may no longer be capable of serving as agent, or the power of attorney documents were intentionally created with limited powers or scope. In that situation, the court hearing the guardianship case will consider the individual named in the Declaration of Guardian as the preferred person who should be named the guardian. In a case where a parent has minor children and passes away, then a guardian may be required to care for the minor child. An estate plan also will give the parent an opportunity to plan ahead and express his or her wishes that a specific individual be the guardian over the minor child.
The guardianship process is costly and that cost can rise significantly if there is a legal dispute during the guardianship initiation. Speaking with an estate planning attorney about the basic estate plan package can greatly reduce, if not avoid, these expenses. A well-versed estate planning attorney can expand in further detail the nuances associated with the basic estate plan, and, if necessary, can also discuss more complex estate plans.