When You Need to Step In..

Written by Vincent J. Russo

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It is not uncommon for my law firm to get a call from a family member who is at wits end in trying to help a loved one. Mom was very private and we do not know what assets she has? Dad never went to a lawyer and we don't know who has the right to make decisions for him? The hospital discharge planner is telling us that we need to do Medicaid planning to pay for nursing home care. The hospital wants to know who is the agent under a Health Care Proxy but my wife never signed one.

In these situations, the first step that needs to be taken is to determine whether your loved one has the capacity to sign legal documents that will allow trusted family members or friends to be able to step in and help. Key legal documents are the Durable Power of Attorney, Health Care Proxy and Living Will for financial and health care decision making.

For those loved ones who do not have advance directives, the inability to make personal and financial decisions can result in the need for a court-appointed guardian.

Financial Decisions. A guardian can make a broad range of financial decisions on behalf of an incapacitated person. The guardian is usually a family member or close friend, who can be given the power to:

collect and invest the person's assets
expend assets and income on any of the person's needs
sell the person's residence
protect the person's assets in such a way as to maximize government benefits (such as SSI and Medicaid)
make gifts of the person's assets to his or her loved ones
set up a Special Needs Trust

Special Needs Trusts. A guardian can set up a Special Needs Trust. The trust will allow a trustee to hold the person's assets for his or her benefit without compromising Medicaid eligibility, subject to certain conditions. This is a vital planning tool for all incapacitated persons under age 65 who have assets.

Personal Decisions. A guardian can also make important personal decisions for the incapacitated person regarding routine and major medical and dental treatment; living arrangements; educational and training opportunities, and the application for government benefits including SSI and Medicaid.

How to Become a Guardian. Your attorney petitions the appropriate court and asks that the court appoint you (or, if you wish, someone else) as guardian. The court decides whether or not a guardian is needed, who should be appointed, and what financial and/or personal decision-making powers the guardian should have. Once appointed, the guardian can begin to act on behalf of the incapacitated person.

Benefits of Guardianship. There are many important benefits in having the Court appoint a legal guardian for a loved one.