Selecting a Guardian – 3 Practical Steps

Dec 08, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Guardianship, Wills and Trusts

For many people, the realization that you need an estate plan comes when you learn you are pregnant and start thinking about the needs and future of your child. If something should happen to you and your spouse, who would be left to care for your child? The legal answer is: a guardian. However, while a parent can select who would act as guardian should the unthinkable happen, if you don’t make your choice in a legally recognized manner, it will be up to the court to choose for you. Here are several steps you can take to ensuring your choice will be honored.

Step 1: Agree on someone.

It’s best if both parents can come to an agreement about who the guardian will be. Take some time to consider your options and discuss your choice before either of you make any decisions.

Step 2: Discuss it with your choice.

No one has to be a guardian, and if you choose someone who doesn’t want the responsibility, that will only cause problems later on. Always discuss your choice with your guardian selection. It’s also good idea to discuss it with other family members as well so they know what your choices are and can express their own feelings about it.

Step 3: Write your will.

The only way to formally recognize a guardian choice is to create a last will and testament. You can make a will on your own, but it’s always a good idea to contact an estate planning attorney so you can be sure your will is properly created and properly includes your guardian selection.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

New Jersey Considers Adopting New Elder Law Protections

Jun 22, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Elder Law, Guardianship

If lawmakers in New Jersey adopt a newly proposed law, the state will join about 30 others that have enacted so-called anti-”granny snatching” legislation. Known as the New Jersey Adult Guardianship and Protective Proceedings Jurisdiction Act, the proposed law would make it much more difficult for family members with incapacitated elderly relatives to circumvent the state adult guardianship protections.

When a state court appoints an adult guardian for an elderly person, it typically appoints a family member to that position. With granny snatching, a family member who was unhappy with the guardianship determination can move the elderly person to a new state and ask a court in that state to name the family member as the guardian. If the court agrees, the new guardian will effectively from the old guardian’s rights because the old guardian was given powers under a New Jersey court and not the new states court.

The bill would have New Jersey join 31 other states, as well as the District of Columbia, in establishing specific procedures when it comes to the cross state conflicts. Essentially, the only court that would have the right to appoint an adult guardian would be the state court in which the elderly person lived for the previous six months. Other state courts would have to recognize the validity of a guardianship appointed in that state and could not appoint a new one.

Seven other states are also currently considering adopting the granny snatching legislation.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

3 Questions About Washington State Guardianships

Mar 02, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Guardianship, Incapacity Planning

Question 1: What is a guardianship?

Answer: A guardian is a person who takes over the legal right and responsibility to care for someone else. Typically, guardians are appointed over children who are not legally capable of looking after themselves or adults who are legally incapacitated. Guardianships are common for adult children with disabilities as well as elderly parents who are suffering from a medical condition such as dementia or Alzheimer’s disease.

Question 2: Who appoints the Guardian?

Answer: In the state of Washington, the Superior Court of the county in which the person is located has the ability to appoint a guardian. The court has the ability to name a full or limited guardianship, both of the estate and of the person. A guardianship of the estate is the power to care for the incapacitated person’s property and money, while the guardianship of the person is the ability to care for the care and well-being of the person.

Question 3: Who can be a Guardian?

Answer: Anyone over the age of 18 who is of sound mind can serve as a guardian. However, if that person has been convicted of a felony or misdemeanor that involves moral turpitude, that person is pro-clued it from serving in a guardianship role. In general, crimes of moral turpitude are those that have malicious intent. These include property crimes such as fraud or robbery, as well as violent crimes and other crimes against people.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

What is the Office of the Public Guardian?

Feb 05, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Guardianship

The Office of the Public Guardian was established as part of the Administrative Office of the Courts.  Its mission is to provide guardianship services for persons who need them and for whom they may not be available.  The Superior Court in each county supervises professional and non-professional public guardians.

To become a public guardian, you must first become a Certified Professional Guardian by:

  • Complete online application
  • Pay an application fee
  • Complete Mandatory Initial Certification Training
  • Clear an FBI Criminal Background Check
  • Participate in an Interview Process

Certified Professional Guardians are also required to complete 12 hours of Continuing Education and recertify every year.

The Office of the Public Guardian provides service to low income people who need the protection of a guardian but are not able to pay for professional services or do not have anyone willing or able to provide the service such as a family member or friend. 

Services from the Office of the Public Guardian may be viable options for persons of moderate means that have an adult disabled child to provide for in the event of their incapacity or death.  It could in fact be a better choice than a family member who does not have the training to handle the issues that may arise with a disabled adult.

The advantage of using the Public Guardian is that you have guardian for you loved one who has been trained to handle the unique issues that can arise with a person who needs guardianship.  They can be the guardian of the person and the property.  They are also regulated and supervised (which is not true for non-professionals) by the Office of the Public Guardian as well as the Superior Court.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

What is a Certified Professional Guardian?

Feb 02, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Guardianship, Uncategorized

The state of Washington enacted legislation to regulate the duties and responsibilities of persons acting as guardians of the person and property of an incapacitated adult or minor child. If an individual or entity accepts a fee in three or more guardianship cases, they must become a Certified Professional Guardian. To become certified as a Professional Guardian one must:

• be at least 18 years of age; and be of sound mind;

• have no felony or misdemeanor convictions involving moral turpitude; and

• have completed mandatory training:

• be a resident of Washington State or one who has appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate and appointment has been filed with the court;

• be authorized to act as a fiduciary, guardian, or limited guardian in this state, if a corporation;

• be a person who the court finds suitable; and  

• possess an associate’s degree from an accredited institution and at least four full years’ experience working in a discipline pertinent to the provision of guardianship services; or

• possess a baccalaureate degree from an accredited institution and at least two full years’ experience working in a discipline pertinent to the provision of guardianship services. 

After becoming certified as Professional Guardian, the guardian must complete 12 hours of mandatory continuing educations each year to maintain their certification and pay an annual renewal certification fee. 

Using the services of a Certified Professional Guardian may be a viable alternative when estate planning in situations where there is no one willing or able to act as guardian for a mentally or physically disabled adult. The professional conduct of the Professional Guardian is regulated by the Certified Professional Guardian Board and the courts of the state of Washington.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Can You Deny Guardianship to the Other Parent?

Dec 13, 2010  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Guardianship

If you are a single parent you may be concerned that if something happens to you, your children will automatically be placed in the custody of their other parent. This could be worrisome if you feel the other parent is unfit to raise your children.

In most cases when the parent with primary custody dies, the other parent receives custody of the children. Even if you appoint an alternate guardian for your children in your Will, the other parent still takes precedence regarding guardianship.

There are some situations where someone else may be appointed as guardian of your minor children, but this is difficult to accomplish. Before the alternate person you appoint in your Will is awarded guardianship, the other parent must be proven unfit.

Some situations that might designate the other parent unfit include drug or alcohol abuse, conviction of a violent crime or involvement in domestic violence or abuse. Mental illness may also be sufficient reason for the other parent to be denied custody.

If you appoint someone other than the other parent as guardian in your Will, you must include your reasons and details for omitting the other parent as guardian. You must also state why you believe the alternate guardian is the best choice to raise your children.

You should attach a handwritten detailed letter to your Will reiterating your reasons the other parent is unfit for guardianship. Maintain a journal of the other parent’s actions that support this conclusion and store the journal with your Will.

Although it is difficult to appoint an alternative guardian, it is possible. These steps should only be taken if there is evidence the other parent exhibits behavior detrimental to the well-being of your children.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.