Last time, I outlined some of the steps to initiating a guardianship when your family member or loved one has reached a point where they can no longer care for themselves, their medical needs, or their finances. But what does it mean to be a guardian? What kinds of legal responsibilities does a guardian have? Who can help you with those responsibilities?
First and foremost, a guardian must act for the best interests of the ward at all times. This means putting the ward's needs first, and putting your needs and interests secondary to the ward's.
This means that a guardian has the obligation to provide the ward with the necessities of life like adequate food, clothing, hygiene, and housing. It means providing the ward with appropriate medical care, medication, and other treatment. With some limitations, a guardian can decide where a ward lives and what type of treatment he or she receives. Focusing on the ward's best interests, the guardian generally can pick the most appropriate living arrangements for a ward, whether that's at home, in assisted living, or a skilled nursing facility. Likewise, a guardian can arrange for appropriate physical therapy, care aides, or hospice care.
This is, of course, balanced against the ward's finances. Because the guardian has an obligation to put the ward's interest first, the guardian must take care to properly account for and manage the ward's assets. The guardian should manage the ward's assets to provide the best quality of care and life for the ward as possible. This may include budgeting the ward's monthly income, managing any investment portfolio or retirement accounts, and managing any of the ward's business (like rental properties).
The guardian is obligated to maintain the ward's assets the ward's name. Except when the guardian is a spouse, this means that a guardian cannot commingle the ward's assets with any third party. The guardian should establish separate bank accounts and title should read, "(Guardian's Name), Guardian of the Person and Estate of (Ward's Name)." The guardian may not utilize any guardianship funds for his or her personal benefit. To do so may constitute theft and elder abuse, exposing the guardian to prison time.
Many wards have debts. A guardian is not personally responsible for the ward's debts. However, the ward's assets should still be used to pay the ward's obligations. For example, medical bills incurred by a ward are subject to being paid from the ward's assets. However, if the bill is not paid because there are insufficient assets, the guardian's personal assets cannot be used to pay that bill.
Additionally, even though incompetent, a ward continues to have obligations to the government in the form of taxes. A guardian is responsible for filing the ward's tax return every year. The cost of preparing the return should be paid by the ward's assets; likewise, any return should be deposited into the ward's account.
Before petition to act as guardian on behalf of your family member or loved one, you should know and understand the legal obligations you would be taking on. There are many professionals in this area available to help with these responsibilities, including accountants, attorneys, home health care aides, professional guardians, and bookkeepers. You do not have to do this alone.
Cassandra Jones is an elder law and family law attorney in Gardnerville. She can be reached at 782-0040.