Legal Blog

The Weekly Scenario: What happens in a guardianship?

Question: What happens in a guardianship and how can I try to avoid this scenario?

Answer: Generally speaking, in most states, the appointment of a guardian or conservator is handled by the probate court.

Once a guardian has been appointed for an incapacitated person, the court authorizes and supervises the decisions of the decision-maker on behalf of the incapacitated person. Some of the tasks of a guardian are to sell assets, expend funds for the beneficiary’s needs and comply with reporting rules. An accounting will typically need to be done to report the activity of the assets but subject to court approval. The court has the ultimate power to approve or reject the accounting and/or to ask for additional clarification.

Comment: Where possible, it is desirable to avoid a guardianship and often times, this can be done by planning ahead. Documents that should be put in place include powers of attorney, health care directives and certain types of trusts.


Steven E. Shane

Steve Shane provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts and charitable trust. He is also experienced with drafting documents for business planning, the incorporation and application for exemption for Private Foundations and the administration of decedents’ estates.

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