What Is a Court Appointed Guardian
A court appointed guardian is a type of guardian that is appointed for someone that the court determines cannot care for themselves or manage their money. The court will appoint a guardian in a situation where there is no one willing or able to care for the person or money. In many cases, the court will appoint a guardian if someone files a petition to have a guardian appointed and the court agrees with the petition. Furthermore, a court appointed guardian can be a family member, friend or a company that serves as a guardian.
The role of a court appointed guardian is very significant. For example, the guardian can make decisions about how someone’s money is spent and how someone is cared for by others . For the person with the guardian, this can be a difficult situation. This is because someone else is making decisions for the individual. Because of this, there is a process the court will go through to appoint a guardian and supervise the guardian.
A court appointed guardian may also be appointed in a case where someone has a disability and needs a guardian. In these situations, the disability could be mental or physical. For example, a person may need a guardian to care for them if they are in a coma and cannot care for themselves. Also, someone with Alzheimer’s Disease may need a guardian.
Sources of Money for a Court Appointed Guardian
As mentioned earlier, the costs associated with appointing a guardian may be paid by the State or governmental agency, the ward, or someone who has volunteered to take care of the ward. While an individual Guardian gets paid their fees from the asset distribution that falls to the ward, generally the State or a government agency appoints Public Guardians who are usually paid by the government.
Florida Bar Rule 5.700 states:
"In every case where a person is appointed guardian in a proceeding brought under part II of chapter 744, Florida Statutes, of a person found incapacitated, if the person to be protected or previously adjudged incapacitated has no assets, the guardian is entitled to receive her or his reasonable cost of administering the guardianship proceedings from the State of Florida."
Therefore, guardianship costs do not have to be paid by the wards along, with any costs they may accrue that arise out of abuse or neglect in these cases, unless the wards have assets. In such cases, guardianship costs can be paid by the wards.
How Much Does It Cost to Petition for a Court Appointed Guardian
If petitioning for a guardian is the ultimate way of dealing with a situation in which an elderly or disabled person cannot provide for themselves, the next logical question is: who will pay for this legal action?
If a family member petitions the court to appoint a guardian, the cost generally falls on that relative. However, after a judge has appointed a guardian, the new guardian has the legal right to ask the court for those costs to be reimbursed. Successful reimbursement requests for filing fees and attorney fees will usually require the showing of some benefit to the person under guardianship and the approval of the court. If a family member wishes to tell the court about the costs of guardianship, there is a specific section on the guardian form that allows for this information to be disclosed.
It is important to note that the court will not pay for personal and familial perceptions. For example, this is not a forum for airing grievances about a sibling or other relative. At the end of the day, though, regardless of who pays for the petition, the court generally does not expect the new guardian to bear the costs of the petition. The judge will expect the costs to be paid by the estate of the person under guardianship (if any) and, if not, the guardian may request reimbursement at the time he or she files the first accounting.
Any questions regarding the costs and what’s involved with petitioning the court for a guardian should be directed to a local and experienced elder law attorney.
Who Pays for the Ward’s Needs
Understanding Who Pays for a Court-Appointed Guardian
Often a guardian appointed by the court to look after the affairs of the individual subject to the guardianship is paid a fee for the services performed as guardian. If you are subject to a guardianship, you may wonder where the funding for your guardian’s fees will come from. It’s important to understand that the fees paid to court appointed guardians do not come out of the pockets of the family members of the subject or the guardian. Instead, there are funds available in the estate of the subject of the guardianship, or in his or her personal funds, to pay the guardian’s fees.
For example, if a trust was initially created for the benefit of the person subject to guardianship, then the trustee of that trust may likely be paying the guardian’s fees. If no trust ever existed for the individual subject to guardianship, then the fees will likely be paid from that person’s personal funds. The most common way to pay for guardian’s fees when no trust was created is to request the court’s permission to liquidate assets owned by the person subject to guardianship.
That sounds simple, right? In reality, with most of the clients we meet with, there is not a great deal of money sitting in bank accounts owned by the person subject to guardianship. Most clients we work with have money invested in a stock account or a retirement account. However, those types of accounts are typically illiquid, or difficult to quickly access.
The alternative would be to sell the assets in the stock account, and request the court’s permission to use the funds from the sale of the stock account to pay the guardian’s fees. Assuming it is necessary to move quickly, the guardian will need to request a hearing with the court to make the request to sell the account. Fortunately, we have successfully completed many similar requests and can guide you through the process.
Government Programs and Financial Assistance
While the potential burden of the costs involved with hiring a guardian may seem like a significant obstacle to many, there is financial aid available for those in need. Government programs and third-party finances can lessen this burden on the appointed individual. According to jewishphilanthropyadvice.com, several government programs currently exist to help individuals with the costs that are potentially associated with a court-appointed guardian: Medicaid Waivers – These abound in states such as Florida into the millions to avoid or mitigate the cost of a guardian of either kind. Guardianship Subsidy Programs – these provide direct payment of the costs associated with a guardian or the administrator, eliminating out of pocket costs to the families, up to cap set by the states . Third Party Finances – These include various grants, foundations and special needs trusts which offer various funds for those appointed Guardian or the Administrator, ranging from payment of their fee to additional administrative costs. Additional Government Programs are also offered throughout the United States to cover other aspects of a guardianship or an administration such as Medicaid, Medicare, SSI, SSDI, CDPAS, OPWDD, and others. The government and outside agencies have estimated the costs associated with a guardian’s "out-of-pocket" expenses at almost $1,000, though this is generally dependent on the individual needs of the ward or estate being handled.
Legal Aid and Pro Bono Work
It is important to note that legal aid organizations and pro bono services may be available for individuals who cannot afford the costs associated with a court-appointed guardian. Depending on the local community resources, three types of legal services may be available: legal aid organizations, pro bono services, and law school clinics.
Legal Aid Organizations
Legal aid organizations provide legal assistance to those in need. Legal aid organizations are typically run by local, state or national nonprofit organizations. The Legal Services Corporation (LSC), created by Congress in 1974, helps fund legal aid in local communities. LSC grants funds to 133 independent nonprofit corporations, called local legal aid programs. In total, LCS has funded 816 offices and more than 7,000 full-time staff positions. To find out if you qualify for legal aid, visit LawHelp.org or speak with a social worker, hospital discharge planner, or senior center staff member.
Pro Bono Services
Older adult protection programs often provide expert counsel and refer individuals to pro bono legal services in order to assist in the filing of petitions to the court. Edison, New Jersey provides pro bono legal assistance for probate issues through its division of the Middlesex County Bar Association. New York City provides pro bono services for older adults through the City Bar Justice Center.
Law School Clinics
Law schools offer clinics that provide free legal assistance for eligible individuals. A law school clinic allows law students to work with supervisors on actual court cases, including guardianship proceedings. The American Bar Association lists law school pro bono programs.
Conclusion – Basic Facts About Guardianships
In this article we discussed the various factors that determine who bears the cost of appointing a guardian. Here are the main points to keep in mind:
- The person needing a guardian does not pay for the appointment in most cases.
- Medicaid will pay for some or all of the services provided by the guardian.
- If you believe that someone is becoming incompetent , you should ask a judge to appoint a guardian as soon as possible to protect that person’s rights and assets.
- If a guardian must be appointed upon the death of a parent, that parent’s estate will pay for it.
- Once an individual becomes a ward, the guardian must file reports and obtain permission to expend funds.
- Bond is mandatory for the guardian, but can be waived by the court.
- The court will always appoint an attorney to represent the ward and will pay fees to that attorney after appointing him or her.