It might sound like a relatively easy solution to an unfortunate problem, but guardianship and conservatorship proceedings can be a costly business. Expenses may be incurred even before the guardianship or conservatorship is officially established. For example, you will have to pay court costs for filing the initial petition to determine capacity. Also, you may have to secure a bond before you are appointed as guardian of property. Expenses can continue into the life of the legal arrangement. They can include nursing home, home care, or assisted living, rent, food, medical care, and home maintenance or repair.
Guardians vs. Conservators
A conservatorship and a guardianship are actually two separate arrangements. A guardian oversees personal issues for the ward, such as healthcare issues and even care, feeding, and supervision, depending on the extent of the ward’s incapacity. A conservator is appointed to handle the ward’s finances. The court will typically appoint a conservator if it appears that the guardian would otherwise have to handle more than $25,000 or so annually on behalf of the ward, but the exact threshold can depend on state law. Some wards might require both a conservator and a guardian, and a court might appoint two separate people to these roles. In other cases, the same individual might serve in both capacities.
Filing Fees
Various expenses must be met even before a person is determined to be incapacitated. Court costs for filing the initial petition to determine capacity will vary by state. If you enlist the help of an attorney in preparing and filing the petition, that professional’s services will cost as well.
Attorney Fees
The court will also appoint an attorney to represent the best interests of the allegedly incapacitated person throughout the conservatorship or guardianship proceedings. This attorney must be paid as well. The ward must have some type of a pre-existing relationship with the lawyer in many states. After appointment, the guardian or conservator must usually seek court approval in many cases before taking specific actions or making certain decisions on behalf of the ward. This, in turn, will lead to attorney’s fees for the preparation and filing of the appropriate court petition. Then the costs and fees of any hearings required by the judge must be added on. The ward’s attorney must typically attend the hearing and must be paid for doing so if the judge requires a court hearing for any reason.
Other Professional Fees
Fees for physicians, nurses, or social workers must typically be paid as well. These professionals help to determine whether the ward is indeed incapacitated. The court will appoint them to thoroughly examine the ward, and each will charge a fee for services.
Serving the Paperwork
The incapacitated person’s closest living relatives are generally required to receive notice of the proceedings. They must receive a copy of the petition after one is filed with the court to determine capacity. This can be accomplished by paying a personal process server to hand-deliver a copy to each family member, or the family might be able to accept a copy of the petition by certified mail in some states.
After a Guardianship or Conservatorship Is Established
Many of the ongoing duties and responsibilities of a guardian or conservator will require the payment of certain fees and costs. A conservator is usually required to file an annual accounting of how the ward’s assets have been bought, sold, invested, and spent. The conservator will either have to personally prepare this report or hire and pay an accountant or attorney to do so.
Who Pays for All of This?
Payment of all these expenses can depend on the extent of the ward’s personal financial situation. Many costs will be paid from the estate when there’s sufficient cash and property to require a conservator—the total cash and value of what the ward owns. Federal law will step in, at least to cover some expenses, if the ward is relatively destitute and requires a guardian. Congress has established a special guardianship fund to pay certain costs in these circumstances, but attorneys serving the guardian or the ward must make a request to the court for payment from this fund. Initial attorney fees at the beginning of the proceeding must often be paid personally by the guardian or the conservator, although the court might order that the ward’s estate reimburse them. Some court costs, such as filing fees, might be waived in cases where the ward has limited or no assets or cash, but still other expenses end up being paid by the guardian without reimbursement. Costs associated with medical or healthcare are the exception. Courts will always make every effort possible to make sure these are paid from the ward’s own funds or through state or federal benefits.
Social Security Benefits
The Social Security Administration (SSA) allows a portion of a ward’s benefits account to be diverted to pay for guardianship proceedings and court-ordered fees under some circumstances. The contributions cannot deplete the ward’s funds, and they will only be made if the ward’s personal needs are already being met. The SSA won’t contribute if the petition for guardianship is unsuccessful.
