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Springfield Business Journal Articles
Sarah Delano Pavlik and Tom Pavlik write a monthly column on legal and business issues for the Springfield Business Journal.


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Unless you were unconscious the whole summer, you know that Michael Jackson died and that there was some drama in the media about who would be named guardian for his children. Jackson named his mother as guardian of the children in his will, but Prince Michael and Paris’ mother, Debbie Rowe, still had her parental rights (although she had apparently given them up at one point). Debbie Rowe eventually agreed to allow Katherine Jackson to be appointed guardian of the children.

Although your family may never make the national news, a guardianship dispute can be financially and emotionally devastating to a family. A guardianship dispute can involve a child or an incapacitated adult. A guardian can be appointed for the “person” and/or the “estate.” A guardian of the person has custody of the person and makes medical and decisions and living arrangements for the person. A guardian of the estate has possession of the person’s assets and makes financial decisions. The same person can, but need not, serve as guardian of the person and of the estate.

In the case of a child, a dispute can arise when the parents fail to name a guardian for their children. A guardian is usually named in a will, although one can be named in a separate written document, which should be executed in the same manner as a will – with two independent witnesses and a notary public. Although the court will generally appoint the guardian named by the parents, it is not required to do so if the person does not qualify as a guardian or if the court determines that the named guardian would not be in the best interests of the children. A person is not qualified to serve as a guardian if he is younger than eighteen, is not a resident of the United States, is of unsound mind or has been convicted of a felony. However, the court may appoint someone who has been convicted of a felony if the court determines that to do so would be in the children’s best interests as long as the felony did not involve harm to a child.

Single parent clients of mine are frequently surprised that they are not entitled to name a guardian for their children if the other parent is alive, his whereabouts are known, his parental rights have not been terminated and he is able to care for the child. A natural parent is legally entitled to the custody of his child.

If parents fail to name a guardian, then the court will usually look to the child’s relatives – aunts, uncles, grandparents, older siblings, etc. If more than one family member wishes to be appointed guardian, a nasty fight can ensue resulting in alienation among family members and large legal fees.

A similar fight can occur over the appointment of a guardian for a disabled, usually elderly, adult. Unfortunately, these fights often revolve around money. One sibling may be caring for the elderly parent. The caretaker child may be taking advantage of the elderly parent, or the siblings may believe that he is. It is distressing to watch siblings fight over their parents’ money, each feeling entitled to the property the parents worked so hard to save.

As with a guardian for children, an adult can designate in advance who she wishes to serve as her guardian. She can also specify who she does not want to serve as guardian. For example, if a woman has three children and one of them has stolen money from her or has otherwise acted irresponsibly or immorally, the woman can sign a document excluding the ne’er do well child from serving as guardian. A designation of guardian is often included in a power of attorney from property or can be in a separate written document.

Although a guardianship may be necessary for an elderly family member, the proceeding can be time consuming and expensive even without a family dispute. A petition must be filed with the court accompanied by an affidavit of a physician as to the nature and extent of the disability. The court will appoint a guardian ad litem to meet with the alleged disabled person to determine if she in fact appears to be disabled and if the guardianship is in her best interests. The guardian ad litem will report back to the court, and a hearing will be set for the court’s determination. The elderly person must be served with notice of the hearing, and can demand a jury trial to determine her competency.

Once appointed, a guardian must periodically account to the court for all of the disabled person’s income and assets. The guardian will have to furnish a bond to the court, which may require a surety, such as a bonding company, to guarantee payment.

So, how can a guardianship be avoided? For an adult, a guardianship of the person can be avoided by use of a medical power of attorney. Pursuant to a medical power of attorney, you can designate who you wish to make your medical decisions for you if cannot do so. The medical power of attorney also serves as a living will, indicating whether or not you wish to be kept on life support. If both parents are deceased, a guardian of the person for a child will be required, however, the guardianship can be terminated if the child is adopted.

A guardianship of the estate can be avoided by use of a property power of attorney and/or trusts. An adult can designate a person to handle her financial affairs pursuant to a property power of attorney. A property power of attorney will generally be accepted by banks and title companies (for real estate), however, it may not be accepted by brokerage companies (which are governed by federal law) and will generally not be accepted by the federal government (for issues regarding social security, etc.).

A more comprehensive option is the creation of a trust. You can create a trust and transfer all of your assets to the trust (with a few exceptions such as retirement plans). If you become incapacitated, the successor trustee you have named will take over the management of your assets. Trusts work well with brokerage companies, banks and title companies. Likewise, if you leave money to your children, you can do so in trust. If a trustee has control over your child’s assets, a guardian of the estate will not be needed.

The bottom line is that anyone with minor children should have a will naming a guardian for the child and creating at least a simple trust for the child’s assets. Every adult should have a property power of attorney, a medical power of attorney and possibly a trust. Some simple documents could avoid the destruction of your family or the loss of your assets to court and attorneys’ fees.
Posted in: October, 2009
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