The Pro Se Guardianship Proceeding

I don't want to sound as if I want to restrict access to our courts.  However, there is a trend, at least here in Fairfax County, Virginia, that has me concerned.  That trend is the rise in number of pro se guardianship petitions, or guardianship petitions that are filed without the help of a lawyer.

I understand the reason these petitions get filed without a lawyer.  Usually, there is a well-intentioned family member who just wants to make sure that an older person who appears more and more confused is getting the help they need.  In many cases, resources are tight, and the family member wants to try to avoid spending a lot of money.

Indeed, guardian petitions are costly.  This is one of the reasons why I warn people that they should put a comprehensive estate plan in place.  If drafted properly, a few dollars spent now can avoid thousands of dollars in expense and hassle down the road.  To properly pursue a guardianship petition, you should expect to pay a lawyer somewhere between $1,500 to $2,500, to pay a court-appointed guardian ad litem somewhere between $1,000 to $2,500, court costs of a little under $100, and additional costs such as doctor's fees, surety fees and other expenses

Even though the petitioners appear to be well-intentioned, and may resent the notion that they have to spend thousands of dollars out of their own pockets to pursue a guardianship case in Virginia, there is a reason for it.  A guardianship petition should never be taken lightly.  First, in Virginia, anyone can file a guardianship petition against anyone else.  If successful, the petitioner will be taking away numerous fundamental rights from the potential ward.  This could include the right to make medical decisions, the right to control your finances, the right to drive, and the right to vote.  Given the seriousness of the matter, courts simply cannot grant guardianship petitions on a whim.  They must be supported by evidence, and the potential ward must be given the meaningful right to contest the proceeding.

Those who file guardianship petitions pro se are often surprised to find out how they work in Virginia.  Before a guardian can be appointed, there must be an evaluation by a licensed health care worker who certifies that the person is incapacitated.  When the guardianship petition is filed a lawyer, called a guardian ad litem, is appointed to provide guidance to the court.  The guardian ad litem is required to investigate the matter, interview all of the relevant players, including family members and doctors, review all relevant information, including medical reports and financial records, and give a report to the court on whether a guardian is necessary.  This takes time.  And, that time gets billed.  Petitioners who choose not to hire their own lawyer are often surprised to find out that Virginia law places the cost of all of this on them.

To be certain, if a guardianship petition is granted, it is possible to get the court to order that the costs associated with the petition be borne by the ward, assuming the ward has sufficient funds.  In some cases, if the ward is indigent, the cost of the guardian ad litem is paid by the Commonwealth.  But, petitioners are taking the risk that all of the expenses will come out of their pocket.

Then, there is the case of the contested guardianship.  In most cases, the guardian is appointed through a simple hearing after the guardian ad litem files the report with the court.  But, if the potential ward objects, then there may need to be a hearing where the rules of evidence apply.  In fact, the potential guardian has the right to insist on a jury trial.  All of this adds to the hassle and expense.  Indeed, a contested guardianship case can cost n the tens of thousands of dollars in lawyer's fee, including the fee of the guardian ad litem.

Filing a guardian petition without a lawyer is also unfair to the guardian ad litem.  The guardian ad litem's role is not to be the layer of the petitioner.  It is to represent the best interests of the potential ward.  Yet, when a guardian petition is filed without a lawyer, inevitably legal requirements, such as the need for a doctor's evaluation, are overlooked.  This places the guardian ad litem in the very uncomfortable position.  Should the guardian ad litem help out the petitioner, and in effect do things that the petitioner's counsel would have done?  Or should the guardian ad litem simply recommend rejecting the petition for failing to meet the legal requirements, and foot the petitioner with a bill for his or her services in doing so.

And all of this is why pursuing a guardianship petition without a lawyer is a very bad idea.  Petitioners need to be forewarned on exactly what the process involves, and how much it can cost.  In the end, hiring a lawyer to guide you through the process will save everyone involved in the process time and expense, while protecting the rights of the potential ward.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchelderlaw.com

Beware the Contested Guardianship!

Guardianship proceedings exist to create protection for people who are no longer capable of making decisions for themselves. Often, a relative, such as an adult child, will bring a guardian petition when the mental abilities of an elderly person has started to deteriorate. Sometimes, a guardian petition is brought by a concerned family member to protect the elderly person from the exploitation of another.

In my experience, most guardianship petitions are uncontested and well-intentioned. But sometimes, a guardianship petition becomes just another phase in a bigger dispute among adult children. Far too often, disputes between adult siblings get heated because there is a belief that mom has money.

A contested guardianship case can become a problem quickly. In Virginia, if a guardianship petition is successful, and the elderly person's estate has the funds, all of the costs, including lawyers' fees, are paid from the elderly person's estate. If the adult children cannot agree on what is best for the elderly parent, and litigation ensues, this means that money that should be used for mom's care winds up getting eaten away by lawyers' fees.

Morally, adult children should give serious thought to just how hard they want to fight in a contested guardianship case. In fighting to control what happens to mom and her assets, the children could wind up throwing her money away.

Who Will Make Your Funeral Arrangements?

While many people do not want to think about their own funeral arrangements, there are some who have some pretty strong feelings about the subject. The question is, how do you enforce your wishes, since you will not be around to direct your family?

Under Virginia law, the next of kin are entitled to make the decision regarding the disposition of a loved one's body and the funeral arrangements. But, the definition of next of kin is broad, including a spouse and any adult children. If there is disagreement, then the disagreeing next of kin can petition the circuit court.

This seems like an awful lot of trouble. It is especially problematic where a person has entered into a second marriage, or where a person is separated from his or her spouse and has not yet gotten a divorce.

Virginia law does have a solution. A person can designate an individual to be the person to make the decisions regarding the funeral arrangements and the disposition of the body. The designation must be in writing and notarized. It must also be accepted in writing.

If you feel strongly about the disposition of your body and your funeral arrangements, this should be part of your estate plan. You should put your desires in writing, and designate a person whom you trust to go through with your plan. A lawyer can help you accomplish this.

Even Those With Less Than $1 Million Need to Plan

This article explains what estate planning is, and why even those without $1 million need to plan. For Virginia residents, anyone with more than $50,000 in assets needs to plan. I have seen estates worth around $100,000 incur over $10,000 in estate administration costs. Spending $2,000 or less to consult with a lawyer can save both the expense and the hassle.

Taking on a Guardianship or Conservatorship

Becoming a guardian or conservator is not something a person should take lightly. These are fiduciary positions, and as such require great consideration before assuming them.

A person may need to have a guardian or conservator appointed if that person has become incapacitated, and can no longer take care of his or her own affairs. The incapacitated person is called the ward. A guardian is the person appointed by a court to make decisions of a personal nature for the ward, such as health care decisions. A conservator manages the ward’s money, enters into contracts, and handles the financial affairs.

In Virginia, guardians and conservators are bound to act in the best interest of the ward. They are required first to qualify for their positions, and then to make regular reports. Persons with criminal backgrounds, or who have bad credit histories will have great difficulty qualifying.

A guardian must make annual reports to the Department of Social Services. The guardian should check in with the ward regularly, and see to it that the ward’s personal needs are being met. Generally, in Virginia, when a person is appointed as a guardian, that person will be required to sign a bond, or a pledge to follow the law and act in the ward’s best interests. However, surety may not be required. Surety essentially means that the person signing the bond would have to find an insurance company or surety company to cover any wrong doing.

A conservator will also need to sign a bond. However, because the conservator manages money, surety will almost certainly be required. The amount of the surety bond will normally be 130% of the sum of the amount of annual income of the ward plus the ward’s assets. That does not mean that the conservator will have to post that amount of money. Rather, the surety will promise to pay that amount of money for any wrong-doing of the conservator. In return, the surety will require the conservator to pay annual premiums.

The conservator will also be required to make regular reports. The first of these reports is the inventory. That means that the conservator will be required to report all of the ward’s assets, and their value. After the inventory, the conservator will be required to make annual accountings, detailing the income received and the expenses paid. All reports are made to the Commissioner of Accounts of the court having jurisdiction over the ward.

A conservator must be meticulous in his or her bookkeeping. Every penny must be accounted for. This means that the conservator must keep receipts. This also means that the conservator must be careful in making disbursement to himself or herself. Such transactions will be highly scrutinized by the Commission of Accounts, and as such the reason for such transactions should be documented completely. A conservator should keep in mind that malfeasance can result in criminal liability.

A guardian and conservator must also be mindful of the possible need to seek court approval before acting. Such approval is necessary, for example, if the guardian wants to move the ward out of Virginia. In fact, even if the ward is moved out of Virginia, the Virginia courts will not relinquish jurisdiction. Annual reporting must continue.

A conservator should be careful about gifting, and spending the ward’s money for anyone other than the ward. Gifting is limited to $500 per year, and only $100 of that can go to any one person. If the ward is wealthy, and would made gifts of higher amounts, that must be shown to the court for prior approval before any such gifts can be made. Indeed, gift giving may very well be a valid plan to reduce the estate tax. But, such a plan must be presented to the court before it can be implemented.

Likewise, if the ward is married, and the ward would normally take care of his or her spouse, this is an issue that should be brought to the court’s attention. The court would have to approve the use of the ward’s money for any purpose other than the benefit of the ward.

A person assuming the role of guardian or conservator, therefore, should enter into the office with seriousness and wise counsel. The rule of thumb should be, when in doubt, seek court approval. By keeping meticulous records, and being mindful of the fact that the guardian or conservator is acting in the best interests of someone else, the guardian or conservator should be able to avoid any serious legal trouble for improper action.■