Guardianship of Estate v. Guardianship of Person Nuances and - PowerPoint PPT Presentation

Guardianship of Estate v. Guardianship of Person Nuances and Differences Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

IS GUARDIANSHIP NECESSARY? • COMPETENCE versus CAPACITY • Critical to determination of whether guardianship is necessary. • Guardianship should be LAST RESORT • Court is Superior Guardian Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

CAPACITY v. COMPETENCY • Capacity: • Medical Term • Describes a person’s ability to make a decision. • Incompetent: • Legal Term • Any person who is so mentally impaired as a result of a mental or physical illness or disability, as a result of intellectual disability, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person's self or property Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Less Restrictive Alternatives GUARDIAN OF ESTATE ALTERNATIVES • Financial Power of Attorney • Payee • Stable accounts GUARDIAN OF PERSON ALTERNATIVES • Health Care Power of Attorney • Assisted Decision-Maker Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

IF GUARDIANSHIP NECESSARY, WHAT TYPE? • Guardianship of Person • Guardianship of Estate • Bond Requirement • Both • Limited Guardian? Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Limited Guardians • Limited by Time • Limited by Authority • Guardian of Person: Healthcare / Residential / Programming / Behavioral • Guardian of Estate: specific asset / lawsuit / duty • Use of limited guardians very beneficial in gray areas. Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Confusion? • Guardianship is a legal process. • Court oversight • Statutory Duties and Procedures • Reporting Requirements • Local Rules of Court • Rules of Superintendence • Ohio Developmental Disability System • Statutory Processes and Procedures • Federal Oversight and Rules for Medicaid funds (CMS) • County Board rules and procedures Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Statutory Duties of Guardian of Person ORC 2111.13 (1) To protect and control the person of the ward; (2) To provide suitable maintenance for the ward when necessary, which shall be paid out of the estate of such ward upon the order of the guardian of the person; (3) To provide such maintenance and education for such ward as the amount of the ward's estate justifies when the ward is a minor and has no father or mother, or has a father or mother who fails to maintain or educate the ward, which shall be paid out of such ward's estate upon the order of the guardian of the person; (4) To obey all the orders and judgments of the probate court touching the guardianship. Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Statutory Duties of Guardian of Estate ORC 2113.14 • (1) To make and file within three months after the guardian's appointment a full inventory of the real and personal property of the ward…; • (2) To manage the estate for the best interest of the ward; • (3) To pay all just debts due from the ward out of the estate in the possession or under the control of the guardian, collect all debts due to the ward, compound doubtful debts, and appear for and defend, or cause to be defended, all suits against the ward; • (4) To obey all orders and judgments of the courts touching the guardianship; • (5) To bring suit for the ward when a suit is in the best interests of the ward; • (6) To settle and adjust, when necessary or desirable, the assets that the guardian may receive in kind from an executor or administrator to the greatest advantage of the ward. Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Guardian of Person When necessary? • Adult with developmental disability who lacks capacity to sign less restrictive alternatives. • Vast majority of time, guardian of person will be all an individual with DD needs. Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Guardian of Estate When necessary? • Person under guardianship has assets • Real Estate • Business Interest • Savings / Retirement / Investments • Person under guardianship involved in litigation • Person under guardianship to create trust • Special Needs Trust • Qualified Income Trust • STABLE Account Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Guardian of Estate When necessary? (cont.) • Person under guardianship has assets • Real Estate • Business Interest • Savings / Retirement / Investments • Person under guardianship involved in litigation • Person under guardianship to create trust • Special Needs Trust • Qualified Income Trust • STABLE Account Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Guardian of Estate Reporting Requirements • Inventory • Guardian’s Account • Guardian’s Report (jurisdiction dependent) • Statement of Expert Evaluation • Release of Funds • Authority to Expend Funds Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Guardianship Impact on Contracts • Finding of incompetency creates presumption that person cannot sign contracts. • Presumption not limited to guardian of estate. So Guardianship of Person creates presumption that a person cannot sign a contract. • Presumptions can be overcome in certain situations. Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Lease Agreements • Lease agreements are a contract where signor is agreeing to pay rent in consideration for right to use property as home. • Guardian of person has exclusive responsibility for choosing residential placement. • Guardian of estate necessary to sign a contract. Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Lease Agreements (cont.) • Representative Payees often pay the rent. • SSA makes it clear to Rep Payees: “A representative payee has no authority to enter into any binding contracts on your [person’s] behalf.” • Lease Agreement Solutions: Residential Placement Agreement (guardian of person addendum) Limited Guardian of Estate Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Gray Area—Release of Liability • A lawsuit is an asset. • Issue: Can a guardian of person surrender/waive an asset of the person under guardianship? • Differing opinions amongst judiciary. • Often the answer is fact specific and the context matters. • Signature Matters—Make scope of authority clear in signature. Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Gray Area—STABLE ACCOUNTS/ SNT • Federal statutes for STABLE Accounts and SNT creation authorize creation by…. “guardian” without distinguishing whether guardian of person or estate. • Control/Deposit/Use of funds involved—clearly guardian of estate. • Solution: Limited Guardian of Estate. • More and more jurisdictions adopting local rules/forms for STABLE accounts. Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Lawsuits • Only a Guardian of Estate can file lawsuit on behalf of person. • Obtain limited guardian of estate for purposes of litigation management. • Court must approve settlement. Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Dispense with Guardianship • If total estate is less than $25,000.00—guardianship of estate can be dispensed with and court will order release of funds to designated person/account. • Most courts have local forms. • Can be released to Rep Payee and/or STABLE account. Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Additional Considerations • Eligibility for Government Benefits (Medicaid/Medicare) • Social Security-Representative Payee (SSI/SSD/SSA) • Divorce / Marriage – both can be equally challenging in different ways • File taxes • Legal Proceedings • Moves • Secure legal papers Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Summary • Guardian of Estate can get complicated – hire an attorney • Record keeping is critical • Never spend money without court approval • Be diligent and protective of assets • File timely accounts • Communicate with the person Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com

Thank you for your attention! Please contact me if you have any questions. Resch, Root, Philipps Graham, llc A T T O R N E Y S A N D C O U N S E L O R S A T L A W Derek Graham derek@rrpg-law.com 614-923-5770 Resch, Root, Philipps & Graham, LLC | www.rrpg-law.com