Nugen Law; focusing on estate planning and elder care law, emphasizing independence and quality of life Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com .

>> Well hello thanks again for watching PBS for Wayne.

I'm Mark Evans, your host and we truly appreciate you watching LIFE Ahead.

And of course this program is very important for adults of all ages as we do try to provide some very vital information that will be useful if not now maybe down the road today we're going to be talking about guardianship and to my knowledge this has been a long time since we've talked about that here on this program and we want to let you know that you are more than welcome to ask any questions or make any comments.

We have a couple of ways in about three different ways you can do that.

>> You can give us a call with the number on the screen you'll see call two six zero (969) 27 two zero and you can either let us know what the question is when you call or you can stay on the line and we'll of course grab the call as soon as we can and get you on the air live and we always enjoy hearing your voice the other way is to text and that's a fairly new way here at PBS Fort Wayne texting.

No, there is on your screen it's two six zero (969) 27 three zero and so give us a call or text us at any time.

And by the way, when you do text let us know at least your first name and the town from which a calling or texting and we love to give you a good old fashioned shout out because we do appreciate your viewership and your support.

>> Speaking of support, we have Brian Nugent, an avid supporter of PBS and we truly appreciate that.

>> Thank you and it's great to have you back.

I think we had you here about a month ago.

It was very interesting conversation.

In fact, we ran out of time and I had so many more questions to ask and we're going to go ahead and dovetail what I think we were heading to talk about last time or at least it seemed like it was guardianship and I think that's a very important topic and a lot of people don't know what that really entails.

>> So why don't you go ahead and start the show by giving us what guardianship means.

>> So guardianship is when an individual has some type of an impaired capacity and meaning that they may not be able to make decisions for themselves in an appropriate manner so that the court then appoint someone called a guardian over an individual the individual is the ward or the protected person in that guardianship.

So the court would appoint someone to act on behalf of the individual that has some type of an impairment and the court could appoint the guardianship so that the individual that's the Guardian would be making decisions about a person that's the subject of the guardianship and or or the estate of the individual that's the subject of the guardianship.

When we talk about estate we mean their money so someone may be making poor decisions with their money or have been taken advantage of in relationship to their money or don't have the capacity maybe to pay their bills and and do things that someone with full capacity would be able to do on a daily basis.

The guardianship is where someone's appointed to make decisions on behalf of someone else that is no longer able to do that for themselves or maybe never was able to do that for themselves.

And then the court oversees how the money of that individual is spent and then every couple of years there's an accounting that's filed with the court.

So the court's aware of how the money was spent on behalf the individual that's the subject of that guardianship.

>> OK, and so that protected person.

Yes.

Who is the the ward what's the specific criteria for someone to be considered incapacity to do as you mentioned?

>> So what has to happen initially is that there is a medical assessment performed so a physician that's familiar with the individual it may be the subject of the guardianship.

They make a determination about the individual's capacity if they may be a danger to themselves.

They're making poor decisions.

They're unable to make decisions for themselves.

So we ask the physician's opinion to determine whether or not the individual has capacity if they have the competence to function themselves without some oversight.

So that's the first thing that happens that we need some type of a medical opinion that the individual in fact requires the guardianship and that the physician says nope, the person doesn't need a guardianship then we're unable to move forward and and the court in that instance wouldn't necessarily appoint a guardian to serve or someone well.

>> And then what would happen in that case?

What would happen?

Well, if they have capacity and we don't have a medical opinion determining they don't have the capacity then no guardianship you can't file requesting a guardianship without that that opinion.

Now sometimes what happens is an individual someone's indicating that they should be the subject of a guardianship, that they are making poor decisions.

They can't they don't have the capacity to care for themselves, et cetera.

Sometimes that individual will say wait a minute, I do have capacity.

>> It's I'm fine.

I can make those decisions for myself.

So I'm going to use another physician to make a determination that in fact I do have capacity.

So there are instances where in the court we may have a discussion about whether or not the individual does or doesn't have capacity.

There's also someone appointed for the individual that's the potential subject to the guardianship called a guardian ad litem.

>> So the guardian ad litem I hear some latinum there could be yeah.

A guardian ad litem.

We sometimes you'll hear people say the gal but guardian ad litem is the individual that has the duty to meet the individual.

It's the subject of the guardianship.

Speak with him perhaps speak with their their physician, speak with folks around that individual and they have the duty to make a report to the court and the court reviews that guardian ad litem report to determine whether or not a guardianship should be implemented.

So their job is to look out for the best interest of the person that could be the subject of that guardianship, making sure that they're being heard and that they're not being taken advantage of in any way.

So not only do we have a primary care physician or physician's report as to the capacity of an individual before a guardianship is is granted awarded, we also have someone called a guardian ad litem that's appointed for the individual that is the potential subject that that guardianship.

So the court's hearing from a couple of different individuals before determining that that a guardianship should be in effect and I think you touched on this previously but I would like to know a little bit more about the different types of guardianship, for instance of the person versus the estate and I think there's temporary versus permanent, aren't there?

>> Right.

So those are two different things.

>> So a temporary guardianship would be it's a shorter term guardianship.

So if there's an emergency that somebody is in immediate danger, they are in harm's way ,someone is leaving their home wandering the community, somebody isn't taking their medications and they're really in a bad way.

Somebody needs to be admitted to a facility or needs medical care and and no one's there to assist them or they're refusing treatment and it's to their detriment somehow that they're in harms way.

>> The court does have the ability to waive the process that we would normally go through where we notify family members, loved ones about the guardianship and say there's such an emergency we're going to waive the entire that the full blown process for a permanent guardianship and we're going to have a hearing right away.

>> We still want to hear from the physician.

We still want to get the guardian ad litem in the courtroom.

But it's a very fast process.

We don't have as much notice to family members or loved ones that we might have with a permanent guardianship so that temporary guardianship is when there's an immediate need we want to appoint someone.

>> It's a shorter period of time that that temporary guardianship is in place and if the the condition the situation that necessitated that temporary guardianship is still in effect, it's ongoing.

It's not just a brief moment in time where somebody was incapacitated for a brief period of time.

It's ongoing then we would want to file something called for a permanent guardianship so the permanent guardianship we make sure that we get notice out to all the appropriate parties that everyone has the opportunity to be heard so that that that permanent guardianship would be in for a longer period of time.

By that you're hearing the word permanent.

It isn't.

It could be in place indefinitely.

But I don't want you to have the impression, Marc, that if somebody does regain their capacity that they're still going to be subject to that guardianship.

So if someone recovers from the condition that was causing that temporary guardianship to be filed without permanent guardianship to be filed the the guardianship doesn't have to remain indefinitely.

It could be set aside.

You were asking about conservatorships or guardianship in relationship to the money of the person that's the estate of the person versus the person themselves.

And it is true those are kind of two halves to a guardianship and it is possible for the court to say somebody needs to someone needs to have their finances managed but their day to day decision making is fine.

They can make decisions for themselves but their finances need to be monitored.

So sometimes that is true.

They go bifurcate that and you'll have just someone monitoring the finances of the individual that's the subject of the guardianship.

>> Can you explain that?

Very well.

We appreciate that we have a text coming in from Katherine of Huntingtown.

Hello Huntingtown.

What is the difference between a play and a guardianship ring?

>> Which one is better?

Actually that's very good.

Yeah.

Thanks Karen.

I appreciate that question.

So play guardianship are really unrelated a power of attorney play power of attorney is where an individual has capacity something called testamentary capacity so they understand who they are, the document they're signing, who it is that there are pointing to make decisions on their behalf so ideally we don't move to the point of having your guardianship.

>> We have powers of attorney that are in place.

>> So the way you're appointing someone else called your attorney in fact and you're enabling them to make decisions related to your finances so someone that could write checks on your behalf, someone that could speak to your attorney, someone that could speak to your banker, your financial advisor signed agreements on your behalf.

>> So if we can have powers of attorney in place that's much preferred over guardianship.

>> So I encourage everyone above to have a power of attorney in place so that power if it's appropriately signed, if the person understood what they are signing when they sign the document may get rid of the need for a guardianship.

The guardianship is where we didn't have that power.

It wasn't effective then we're having to go to the court and ask someone to make those decisions on behalf of the individual.

I want to stretch your question just a little bit a little bit more, Karen.

We also in Indiana have health care representative designations.

So those are things that can be signed in advance of having a lack of capacity where you're appointing someone that could make health care decisions for you, decisions about your person without the need for that guardianship.

So even before we can file for guardianship, the courts will ask is this the least restrictive thing that we can do here?

Is there a power of attorney in place?

Is there a health care representative designation in place because if there is the court may indicate I'm not interested in awarding a guardianship or setting for setting guardianship for this individual, they already took care of those things.

They've already signed documents indicating that somebody can make decisions for them as their attorney in fact or as their health care surrogate.

So great question here in the plan the guardianship are the end result may be the same and that somebody is making decisions on behalf of another person but the process is radically different and we I would encourage anybody that's listening to have a power of attorney in place health care surrogate designation in place always preferred process over having a full blown guardianship for sure.

>> OK, now if you're a guardian doesn't necessarily mean you have to be a youth or young person, is that correct?

>> So the Guardian is the individual that's taking care of somebody else.

So yes, they would have to be 18 years of age or older and they would have to be competent and the court would have to be convinced that they're appropriate to be making decisions on behalf that person that is the subject to the guardianship.

>> So we're looking at maybe age 18 and over as the Guardian The Guardian, the subject of the guardianship.

>> They they could be a minor.

They could be at any any.

That's right.

OK and I was I'm sorry if I threw the wrong crib there.

I was mainly talking about the the the ward if you will, the person that the Guardian is taken care of .

>> Well, what are the first steps hinging on that answer there?

>> One of the first steps a family should take if they believe a loved one actually needs a guardian.

>> So I think that not that you couldn't file for a guardianship on your own without counsel, but it's a pretty strict procedure to get a guardianship established.

>> So I have to say I think you should speak with an attorney that's working in the area of guardianship.

>> They're familiar with it to make sure that the appropriate process or procedure is in place and and that that counsel that meeting would most likely allow you to engage with the attorney and find out gosh, mom's not herself or something's going on with my son or my daughter or my my special needs child is turning eighteen.

>> What should we do?

How can we make decisions?

So I would say good counsel initially then after you have that meeting most likely the attorney is going to be indicating to you we need have we need to have a medical assessment to determine that this person in fact does require a guardianship after you have that assessed.

>> Typically we're looking for the guardian ad litem to serve somebody that would either voluntarily do that or be paid for that service and they would then accept the appointment as guardian ad litem.

A petition would be prepared with the court and that petition would be explaining why the guardianship is necessary.

That petition would set forth the assets of the individual.

So how much they have in their checking account, their savings account investments, real estate.

So whatever assets they may have, all of that's put together in the petition within the petition we also indicate other people that may be interested in the guardianship .

>> So brothers, sisters, children, parents we're also listing all of those individuals in that petition and they have the right to be notified of the guardianship.

So a letter is mailed to them saying somebody has filed for guardianship.

If you would like to be heard in relationship to this, please attend a hearing date y so that's the process that gets that guardianship petition started and that that guardian ad litem as I was saying before, may be interviewing the individual.

>> That's the potential subject of that guardianship.

So they would be interviewing them, submitting their report to the court and then there's a hearing and at the hearing the individual that someone is saying they do need a guardianship, they have the right to be in the courtroom to hear what's being said if in fact that's appropriate for them and they're not in harm's way should they come to court so remember before I was talking about we ask a doctor to express an opinion about the individual if they do need a guardianship or not.

One of the questions that that's typically asked is can the individual be in the courtroom?

Is it appropriate for them to be in the courtroom?

And sometimes it is appropriate and sometimes it's not appropriate.

So that's something that's expressed by the the medical person the doctor that's expressing an opinion about that individual.

So we have the hearing there.

We have the right to examine the individual that's being requested that's requesting the guardianship if there are people that are opposed to the guardianship, they have the right to have to be testified to rather to testifying to be heard.

The guardian ad litem would would also provide testimony about whether or not it's appropriate for this guardianship to be in place.

Then based upon that information, the court may very well say I'm going to award that guardianship today.

I'm letting you know I'm going to sign the letters appointing Guardian if the court isn't convinced and they would need to hear testimony from other individuals, it's possible that hearing would be continued.

>> But so that's kind of the process.

Mm hmm.

Well, so even after a guardian is appointed let's say what fundamental legal rights is that word still have?

>> Well, really none.

So if we have a full guardianship that individual we determine that they don't have competence.

>> They don't have capacity to make decisions for themselves.

They wouldn't be able to make financial decisions for themselves.

They wouldn't be able to make medical decisions for themselves.

Now that doesn't mean that the guardian of that individual shouldn't be having an ongoing discussion with that person that is the subject of the guardianship.

It doesn't mean that they shouldn't be engaging with them and trying to glean from them what's appropriate and what they do want and don't want.

But ultimately the individual if they're subject of a guardianship then they don't have any rights to make those decisions for themselves.

>> The court's determined that they don't have the capacity to act on their own behalf and the Guardian doesn't have to necessarily live with the word no.

>> OK, all right.

So it's interesting you say that I had a guardianship matter recently where I had an individual that was asking to be the Guardian and had spoken with a friend or a neighbor or saw something online that I heard that the they had to live with the individual for a period of time.

That is not a requirement by statute.

I'm not sure how that's getting around but no, that's not a requirement by statute.

>> And something else to point out, you're the individual that's the Guardian.

They're not personally liable for the expenses of that war that subject to the guardianship.

They're not personally responsible for their expenses.

So they had a hospital stay or they were staying at a memory care unit or a facility such as that or they had ongoing expenses so an individual shouldn't be worried about serving as a guardian thinking that gosh, I'll have to pay those those expenses or I'm personally responsible for that individual.

What they are responsible to do is to make sure that the money that that individual has their estate isn't spent on something that isn't appropriate for that that person is the subject to the guardianship that they're spending the money appropriately, they're investing it appropriately.

They aren't taking for themselves or somehow bettering themselves.

So they do have those duties but no, they don't have to live with the individual and they don't have any financial obligation to the individual.

>> OK, so you realize somebody needs a guardian so from step one to completing all the steps, how long does the process usually take so temporary guardianship?

>> So if there's a true emergency and again a temporary guardianship isn't necessarily favored because we're not notified we aren't guaranteed to have notified other individuals that may be interested in that that that person that's the subject of the Guardian, it's fast tracked so that a temporary guardianship could be just a couple of weeks and you have a temporary guardianship in place.

The permanent guardianship I can say in this area we're typically around three months that we're waiting for that guardianship hearing to be held.

The temporary guardianship should be advanced on the court's docket meaning the court is supposed to make sure that that's taken care of in a very brief time is possible and because there is a true emergency and the courts want to know there is a true emergency, you said the sky is falling if there really isn't an emergency request that temporary guardianship but for a permanent guardianship you're probably at three months, four months that's in this area that could be different in different I didn't think it would be taking that long.

>> Yeah, a lot of red tape I guess you have to go through to a certain degree.

>> Well, and the court's calendar is busy so we have to respect the court's calendar.

OK, well you've got a point there.

>> You may have touched on this earlier in the conversation but kind of guardianship be legally terminated or modified if the words condition improves for sure.

>> So if the individual is no longer appropriate for a guardianship so let's say for example, someone had an automobile accident and they had traumatic brain injury TBI so they have that that brain injury and there for a period of time they are incapacitated.

They don't have capacity there.

They are unable to appropriately make decisions for themselves.

They didn't have that power in place that we were talking about before.

They don't have that health care representative designation in place that we were talking about before.

>> So a guardianship is appropriate but as they recover it may be that they recover to the point that they now have capacity.

So the guardianship that was in a plate that was in place initially is no longer appropriate if it's no longer appropriate that individual or someone else is is welcome to petition the court and indicate the guardianship is no longer appropriate.

>> It should be removed.

So yes, once you have a guardianship in place it doesn't have to last forever.

>> I would say it's more common that a guardianship is in place for lifetime but it is possible for them to be set aside depending upon the person's capacity and if they show improvement.

>> I was going to ask you if you've seen cases like that.

>> So I have to say I can't think of a time where I've been involved in a guardianship where we were asking for the guardianship to be removed but it's very possible that if they're no longer if the guardianship is no longer appropriate they've regained capacity, then of course the guardianship should be set aside.

>> People the courts don't want guardianship in place for individuals that don't need them so without a doubt it would be set aside if no longer appropriate.

>> OK, very good.

The specific decisions a guardian can make I mean can we canvass like medical, financial, residential all those all the above.

>> All the above.

Yeah assuming the guardianship indicates that The Guardian is making decisions about their money, their estate OK.

Right and they're making decisions about the person so assuming all that information is is within the court is determined that that guardian should make decisions about all of those matters then they're making decisions about everything in relationship to the to the person that's subject to the guardianship.

>> Now it could be as we were talking about for and you were asking about before they're just handling their financial affairs so it is possible we're handling just financial affairs and we're not making decisions in relationship to the into the person their health care decisions are where they should be living or should they be admitted to a nursing home?

Should they be admitted to memory care, those types of things.

So it's possible that we have we don't have a full blown guardianship.

>> OK, and what kind of oversight there has to be some sort of supervision of the guardians to make sure that they are doing their job and doing it so they take so the Guardian takes an oath swearing that they'll comply with that guardianship and they're in essence they're taking care of that individual.

But every so initially when we establish a guardianship we have to file something called an inventory.

That's what the individual's assets what they have.

So the court's aware of that.

Then every two years there's an accounting that's filed with the court so that accounting indicates how the money has been spent in the last twenty four months and so The Guardian is responsible for keeping a ledger and making sure they're appropriately tracking all of the expenditures so that money was spent for the benefit of that individual that nobody else was taking and they weren't being taken away.

>> So some checks and balances, checks and balances.

Oh, I think we have time for one more question coming via text and it's from Karen who's this one from Karen from Huntingtown Huntingtown again.

>> OK, if the adult is in a nursing home, does the Guardian have the responsibility to protect assets?

>> So if a guardian if an individual is in the nursing home it would be their duty to say I have the ability to protect their assets.

There is a Medicaid application process that we can go through.

They can attempt to protect those assets.

>> But in order to do that you would have to ask the court's permission is it OK for us to take steps to attempt to protect those assets?

>> So you would have to ask the court's permission to do that.

OK, yeah, I don't know how we've got about 30 seconds.

Let me ask you this last question.

Are there less restrictive options families should consider seeking a of course that's the power of attorney.

>> That's the health care surrogate designation everybody should have that everybody should 18 and above minors can't sign them.

>> We've got to remember the eighteen plus you've got it.

Well, very good.

Brian Doujin, thank you so much.

>> You know, thank you.

If I sit around and talk to you much, many more times I'm going to become a lawyer myself.

>> There are enough yeah.

Yeah.

We appreciate your help and all your support and of course these topics that you bring to us.

We thank you so much and we'll see you next time.

All right.

And we hope to see you next time as well on Wednesday nights for Life Ahead.

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Support Weinberg until next time.

We wish you a great life at thanks for watching Nugen Law; focusing on estate planning and elder care law, emphasizing independence and quality of life Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com