What Are The Advantages And Disadvantages Of A Guardianship?
In most cases, guardianship proceeding is usually a highly emotionally charged event in all the participants’ lives. There are many pros and cons, but the advantages, in many instances, outweigh the disadvantages. The main advantage of a guardianship is that it can solve what seemingly appears to be an impossible situation that the caregiver faces. These impossible situations are at times medically critical. The guardianship proceeding helps mitigate bad behavior, such as if a loved one is refusing to take medication, refusing to be placed in a safe environment, highly aggressive, reclusive, locked in the house, subject to financial exploitation or spending money or without care.
The important advantage of guardianship is that it effectively stops these seemingly disastrous situations from occurring. It is the ultimate measure to prevent these things from occurring and that’s why most people go that route. Another advantage of guardianship is it provides a neutral forum when there is a dispute between siblings or adult children and a spouse who is the caregiver and is not the parent of the adult children. Guardianship provides a forum, when there is a family dispute regarding caregiving, where everything is out in the open and the financials are transparent, it allows disclosure of how much money there is, how it is being spent, and what the plan of care is intended to be. If there is any dispute between the person who is ultimately appointed as guardian to make these decisions and other family members who may not agree with the caregiver, the judge can settle these disputes in court and everyone can have their day in court about the caregiving situation.
The guardianship provides an excellent forum when there is gridlock between caregivers. It also protects the loved one who should be the main focus of all the parties from being harmed because the caregivers can’t get on the same page. The final advantage of a guardianship is that it protects the incapacitated person’s financials from exploitation when all workarounds and alternatives to guardianship do not do their job. Guardianship can be avoided with a durable power of attorney, a healthcare surrogate or a living trust. However, even when those legal documents are in place, a guardianship may still be required. A person may be taken to the bank to be exploited, with the durable power of attorney, the incapacitated person could be writing checks to random people, or groups, or the incapacitated person may not be listening or sabotaging all good and sound medical advice family members provide.
An advantage of the guardianship proceeding is that it stops many of these financially disastrous situations from occurring. Essentially, the incapacitated person’s financial abilities to write checks, make investment decisions, change account titles, move funds, or close accounts is no longer valid and all those actions can only be done by a court appointed guardian. Under the guardianship, the incapacitated person cannot be exploited, write checks, or be taken to the bank because their signature has no standing and has no effect to manage finances. The guardianship is a great forum to protect finances from exploitation.
Guardianship does come with disadvantages through. First and foremost, a court supervised guardianship is very expensive. A guardianship requires court filing fees, attorney fees of the alleged incapacitated person, fees for each of the three examining committee members, and fees of the attorney that represents the person petitioning for guardianship. If there is a complete breakdown and disaster between family members and a professional guardian has to be appointed, then there will be professional guardian fees as well. Even in undisputed guardianship proceedings, the fees and costs start at approximately $5,000, and that is if the person seeking guardianship is uncontested. Additionally, annual uncontested guardianship fees can easily be $500 to $2,000, depending on the size of the guardianship estate. Anytime a guardianship is contested, or family members all have attorneys, the estimated fee cap is unrealistic and it’s conceivable to see $20,000 to $50,000 in attorney’s fees in a contested guardianship proceeding.
Another disadvantage for a guardianship is that it’s clunky. Because guardianships are transparent, that benefit unfortunately results in a high degree of court reporting and notifications to other interested persons throughout the proceeding. Every dollar that the guardian spends may be scrutinized, every major decision may be scrutinized, and future plans concerning care can be scrutinized. These things must be reported to the court. This reporting requirement is a main reason that guardianships are so costly. The attorney needs to review all court reporting in order to keep a guardian out of hot water with the judge or other parties in the guardianship proceeding.
The third disadvantage of a guardianship is that the primary caregiver loses a degree of control, even if he or she is appointed guardian. The loss of control for a caregiver who has been consistently taking care of things, but has all of a sudden started receiving a pushback from other family members, may feel frustrated by the guardianship, especially after having done that job for a long period of time. Ultimately, though, that disadvantage from lost control is usually to the benefit and the soundness of the decision making for the loved incapacitated person. The final disadvantage to guardianship is that it can certainly be traumatic for all parties involved, especially the relationship between a primary caregiver and the loved one who may be in a declining awareness of capacity.
When a guardianship case is filed, the person who is alleged to be incapacitated gets served with court papers, receives a court appointed attorney who will review those court papers with them, and will be visited by three separate medical providers to determine his or her capacity. All these visits create a high degree of trauma to the declining incapacitated person because it creates a feeling of the final loss of capacity. They may also become upset with the public acknowledgement of their declining cognitive abilities. The person who is subject to the guardianship may direct his or her anger to their closest family members if there is some degree of awareness of the nature of the proceeding. This may result in some degree of resentment. Of course, this is not a disadvantage if an incapacitated person’s illness is so far gone that he or she is not the same person that they were 10 years ago.
While the disadvantages are quite painful, some situations in which the named advantages are realized result in no choice. Is the clunkiness expense worth a loved one’s life or worth preserving a significant sum of money or having it all taken away through exploitation? If the disadvantages are too scary, re-read the advantages to make sure the situation’s advantages outweigh the disadvantages.
For more information on Advantages & Disadvantages Of Guardianship, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.
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