The First Steps
The Court has entered a decree adjudicating your mother an incapacitated person and appointing you as plenary (permanent) guardian of her person and estate. Now your work as a guardian begins. The first steps in navigating these unchartered waters is to a take a deep breath and review the Court’s decree which sets forth, in part, your duties and responsibilities as guardian. Generally this decree will order you to file with the Court an inventory (a “financial snapshot”) regarding your mother’s assets; and to file a copy of your mother’s will (in a sealed envelope) within 90 days of the date of the decree.
Guardianship Bank Account
As guardian of the estate you will also need to establish a guardianship bank account, or accounts, to safeguard your mother’s monies and financial holdings. These accounts shall be properly titled in your mother’s name and identify you as the guardian. As a plenary guardian of the estate (with broad powers), you will have the sole signature authority for these accounts. A bank or financial institution will often require a certified copy of the guardianship decree before allowing you to establish a guardianship account. Remember to never comingle your personal assets with the assets of the incapacitated person.
Payment of Bills and Guardianship Fees
As guardian of the estate you have automatic authority to spend your mother’s income for her care; however, if her income does not meet her monthly expenses you are required to file a Petition for Allowance with the Court seeking permission to expend principal for your mother’s support. It is quite common that an incapacitated person’s income is not sufficient to meet their monthly expenses. A Petition for Allowance will present a budget for the Court’s approval and may also include requests for payment of attorney fees, guardianship fees, and monies to establish a pre-paid funeral or irrevocable burial reserve account. Family members often do not request guardianship fees for their services. If such fees are requested; however, fees must be reasonable and reflect the actual time and work performed as guardian. If the Court requires a hearing regarding the Petition for Allowance, a guardian should be prepared to submit additional supporting documentation concerning the various expenditure requests. If the Petition for Allowance is granted, the Court will enter a decree and itemize those requests approved for the expenditure of principal of the incapacitated person’s estate.
Sale of the Home
If your mother owns a home but can no longer live there due to her disabilities, you may, as guardian of the estate, decide to sell the home on your mother’s behalf to save money and protect her estate. You must then file a petition seeking Court approval to sell the home pursuant to a specific agreement of sale. This petition includes the agreement of sale and other supporting documents, and explains why you believe the sale serves the best interests of the incapacitated person. If approved, the Court will enter a decree. A title company will not allow the sale to proceed without this decree.
Making the Guardianship Decree and Contact Information Available
If your mother is residing in a residential facility you, as guardian of the person, should provide the facility with a copy of the guardianship decree. Facility staff should notify you of any change in your mother’s status (such as an emergency hospitalization), and the dates and times of care conferences (often held on a quarterly basis). If your mother is hospitalized you should confirm that the guardianship decree and your contact information is incorporated as part of your mother’s medical records.
As plenary guardian of the person and/or the estate of an incapacitated person, you are required to file Annual Reports with the Court. This is accomplished by supplying information and completing approved report forms online. These reports are due beginning one year from the date of your appointment as guardian, and annually thereafter. You should review the forms after you are appointed guardian so you understand the information that you will need to provide to the Court. You may be removed as guardian or be otherwise sanctioned by the Court if you fail to file the reports as required.
You may file a Petition for Review with the Court if there is a change in your mother’s status or in your ability to serve as guardian. Your mother may no longer need a guardian if her cognitive condition has improved, or, you may seek the appointment of a successor guardian if, due to health reasons for example, you can no longer serve as guardian.