- For Attorneys
A guardianship is established by filing a petition for guardianship with the court where the child resides. There are different types of Guardians. A Personal Guardian tends to the personal care of the ward, while an Estate Guardian is the guardian of a persons estate (real estate, personal property, money, and the like). One person can be guardian of both, or separate guardians may be appointed. A Personal Guardian is given custody of the disabled person or minor, this person often being called the ward. Such a guardian has a duty to take care of the ward. He/she will decide where the ward will live. He/she cannot place the ward in a nursing home or other residential facility unless specifically given that authority by the Court. The guardian is responsible for the ward's support, care, comfort, health, maintenance and placement, if appropriate, in an educational program; all from the ward's income and assets. The guardian is to see that the ward gets the medical, dental, grooming, and other professional services that the ward needs. The law requires that the guardian "assist the ward in the development of maximum self-reliance and independence".
The guardian is not required to spend his/her own money for any of these expenses. The guardian is may be responsible for seeking the money needed from the ward's income and assets.
If the guardian spends more or incur debts greater that the ward's estate can afford, he/she may be held personally responsible for those amounts. If the ward does not have enough money to pay for what is needed, it is the guardian's responsibility to apply for government assistance programs that may help pay for these services.
If the Court so directs, the guardian is will also have the responsibility of making reports to it. These reports shall specifically address points required by state law. If the ward has enough money, the guardian can be paid for serving as guardian. The guardian's bill for services must be supported by careful records and approved by the Court.
The estate of the ward is everything the ward owns. It includes land, money, bank accounts, furniture, cars, clothes . . . everything. The guardian's responsibility over this property may be defined or limited by the order appointing the guardian.
An estate guardian has the duty to take care of, manage, and invest the ward's estate. He/she must take care of the ward's estate and be frugal, conservative and cautious. The Court may authorize the guardian to spend the ward's money for the comfort, support and education of the ward, as well as certain expenses of the ward's family.
The guardian may be able to sell some of the ward's property to pay for the ward's care, but he/she will need a Court order to do so. The guardian may not treat the ward's property as his/her own. The guardian must keep his/her money separate from that of the ward. The guardian can be forced to pay for any mismanagement or fraudulent use of the ward's estate. The guardian should establish a new, FDIC fully-insured checking account to pay for the ward's expenses. It should be titled: Estate of "ward's name", "guardian's name", Guardian. The ward's Social Security number should be used on this account.
The guardian must keep a careful record of all transactions involving any of the ward's property. This can range from balancing the checkbook to hiring an accountant at the estate's expense. Every bill that is paid and all money that is received on behalf of the ward periodically must be reported periodically to the Court.; To be able to identify the source of money received when the time for accounting comes, it can be helpful to describe the source of the money on the bank deposit ticket.
If the ward has been receiving Social security benefits, the guardian should contact the local Social Security office and inform that office of his/her appointment as Guardian. The guardian will need to provide the Social Security office with the Court documents appointing him/her as Guardian. The Social Security office can provide information on using the benefits on behalf of the ward. It may be convenient to have the Social Security checks directly deposited in the new Guardianship account. Social security benefits should be spent before any of the ward's other assets.
If the estate of the ward is derived in full or in part from payments made directly to the estate by the Veterans Administration, notice of any application or leave to invest or spend any of the ward's funds must be given to the Veterans Administration regional office. The guardian should contact either his/her attorney or a representative of the Veterans Administration office for details as to how this is to be handled.
The guardian is responsible for filing the ward's income tax returns, both federal and state, if the ward has enough income to require the filing of returns. The guardian will be responsible for paying any estimated income taxes due in April, June, September, and January. The guardian can pay all these taxes with the ward's money.
The guardian will have the duty to appear for and represent the ward's interests in all legal proceedings. He/she may (and should) hire an attorney to handle any legal matters involving the ward or the ward's property. With the Court's permission, the guardian may use the ward's funds to pay these attorney fees.
The following are AL statutes:
13.26.045. Court appointment of guardian of minor; conditions for
The court may appoint a guardian for an unmarried minor if all parental
rights of custody have been terminated or suspended by circumstances or
prior court order. A guardian appointed by will as provided in AS
13.26.035 whose appointment has not been prevented or nullified under AS
13.26.040 has priority over any guardian who may be appointed by the
court but the court may proceed with an appointment upon a finding that
the testamentary guardian has failed to accept the testamentary
appointment within 30 days after notice of the guardianship proceeding.
13.26.050. Court appointment of guardian of minor; venue.
The venue for guardianship proceedings for a minor is in the place
where the minor resides or is present.
13.26.055. Court appointment of guardian of minor; qualifications;
priority of minor's nominee and adult family member.
The court may appoint as guardian any adult whose appointment would be
in the best interests of the minor and is consistent with a priority
given to an adult family member. The court shall appoint a person
nominated by the minor, if the minor is 14 years of age or older, unless
the court finds the appointment contrary to the best interests of the
minor. In this section, "adult family member" has the meaning given in AS
13.26.060. Court appointment of guardian of minor; procedure.
(a) Notice of the time and place of hearing of a petition for the
appointment of a guardian of a minor is to be given by the petitioner in
the manner prescribed by AS 13.06.110 to:
(1) the minor, if the minor is 14 or more years of age;
(2) the person who has had the principal care and custody of the minor
during the 60 days preceding the date of the petition; and
(3) any living parent of the minor.
(b) Upon hearing, if the court finds that a qualified person seeks
appointment, venue is proper, the required notices have been given, the
requirements of AS 13.26.045 have been met, and the welfare and best
interests of the minor will be served by the requested appointment, it
shall make the appointment. In other cases the court may dismiss the
proceedings, or make any other disposition of the matter that will best
serve the interest of the minor.
(c) If necessary, the court may appoint a temporary guardian, with the
status of an ordinary guardian of a minor, but the authority of a
temporary guardian shall not last longer than six months.
(d) If, at any time in the proceeding, the court determines that the
interests of the minor are or may be inadequately represented, it may
appoint an attorney to represent the minor, giving consideration to the
preference of the minor if the minor is 14 years of age or older.