Though sometimes necessary, going to court to set up guardianship for loved ones who can no longer reliably make decisions for themselves can be difficult, and painful. Court involvement makes the matter public, and takes ultimate decision making away from the family. Lawyers say there are alternatives—though they require timely intervention.
When a decline in capacity is anticipated, authority over financial and health decisions can be legally assigned, proactively, to a trusted friend, relation or professional fiduciary, via a Durable Power of Attorney and Health Care Power of Attorney. These legal documents can be executed with a lawyer, without the need for opening a court case. Brady Cobin Law Group explains:
A guardianship grants very similar authority to that of a power of attorney, the main difference is the individual using a Power of Attorney was granted that power by the “grantor” and the Guardian is granted the power by the courts. A durable power of attorney avoids the need for a Guardian of the Estate, meaning the individual who was granted the power has the authority to handle all the necessary financial matters for the Grantor, including paying bills, contracting for care services, and handling investments, etc. The health care power of attorney avoids the need for a guardian of the person, as the HCPOA can make all of the necessary medical decisions when someone can’t make them for themselves any longer.
Guardianship and Bonds
Of course life circumstances do not always afford the time and opportunity to arrange Power of Attorney before a severe decline in capacity renders someone we care about unable to grant that authority. In those instances, court intervention to establish guardianship might become necessary. Guardianships are also typically necessary when both parents of a minor child die.
The legal proceedings to establish guardianship can be complex. Given the seriousness of the role and responsibilities involved, guardians in many states are required to secure a guardianship bond: a type of fiduciary bond which protects the interests and affairs of “the ward.” You can learn more about guardianship bonds right here. The requirements of guardianship bonds vary from state to state, but as a national, direct writer, Colonial Surety provides bonds to meet the specific requirements in every state. At Colonial, all fiduciary bonds, including guardianship bonds are available directly and digitally. The steps to obtaining guardianship bonds are easy: get a quote online, fill out the information, and enter a payment method. Print or e-file the bond right from anywhere—even while at court. Obtain Guardianship Bonds Here.
Good To Know: Representative Payee?
Brady Cobin Law Group points out that if a loved one is unable to appropriately manage benefits, like social security or disability, another option for intervention might be arranging to serve as the Representative Payee of Social Security Benefits:
Oftentimes, in cases where assets may be limited (or in abundance for that matter), simply applying to become the representative payee with the Social Security Administration may help create a situation where those funds can then be accessed and used to provide care. If a beneficiary of SSI or SSDI is unable to manage their benefit, a representative payee is appointed by the SSA to receive and manage those benefits upon the showing of medical evidence (such as a signed physicians note) explaining their opinion that an individual lacks the ability to manage their funds. Since the beneficiary of SSI/SSDI does not need to be declared incompetent to have a representative payee appointed, this simple process can be a good alternative to guardianship.
Special Needs Trust
Lawyers also point out that a special needs trust offers another way to ensure care and financing for loved ones unable to care for themselves. When working with a lawyer to establish a special needs trust, it is especially important to be thoughtful and careful about the appointment of the trustee. As legal experts explain:
Special Needs Trusts are set up to benefit a person with a physical and/or mental disability. A properly drafted SNT can allow a disabled person to maintain their government benefits and have additional funds available to supplement their care and needs. While the disabled individual will never have any authority over or access to these resources, the trustee who is appointed can ensure that all government benefits are retained and the SNT itself is providing for the disabled individual appropriately. Given the trustee/beneficiary relationship created with an SNT, a guardian of the estate can be avoided in many cases as the trustee is already in place to manage the finances and resources of the disabled person.
Keep in mind that ultimately, whether selecting a professional, friend, or relation as the trustee, your designee has a fiduciary obligation to the beneficiaries—and must always exercise reasonable care and skill in managing the assets of the trust. Accordingly, the trust agreement may require a trustee bond to protect the interests of the trust and its beneficiaries in accordance with applicable state law. As a leading national provider of many types of fiduciary bonds, Colonial Surety makes it easy and efficient to obtain a trustee bond. Just get a quote online, fill out the information, and enter a payment method. Print or e-file the bond from anywhere—even the law office. Obtain a Trustee Bond Here.
Family and Estate Practice?
Colonial Surety provides attorneys with complimentary business support services via The Partnership Account®. Once you sign up for The Partnership Account® for Attorneys, you will have direct access to our complete online portfolio of court and fiduciary bonds–and your own private dashboard. Use it to quickly and efficiently obtain, track, manage and even e-file all the bonds needed to keep your clients and cases moving forward.
Colonial’s online bond portfolio includes: administrator, estate, executor, guardian, personal representative, probate, trustee and conservator. We also have: appeal, supersedeas, injunction, replevin and receiver bonds—and more.
Yes, please: The Attorney Partnership Account®
Founded in 1930, Colonial Surety Company is a direct writer of surety bonds and insurance products. Colonial is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA.