The Surrogate Decision Maker and the Guardian of the Estate
November 28, 2015
By Rick L. Law, Guardianship, Elder Law, Estate Planning attorney, and founder of the Estate Planning center at Law Elder Law. Senior Advocates in Kane County in Illinois.
Another reason that it is important to create a guardian of the person is to avoid having a surrogate decision maker assigned. While the courts will try to assign someone with the individual’s best interests at heart, it does not always work out that way.
In some cases, for example, where an incapacitated patient is in the hospital and does not have a living will or a power of attorney, the attending physician may appoint a surrogate decision maker who would then be authorized to make health-care decisions for the patient. These decisions include whether to forgo life-sustaining treatment. The order of priority for being appointed a surrogate decision maker varies from state to state but is generally similar to the example below from Illinois:
- the patient’s guardian of the person;
- the patient’s spouse;
- any adult son or daughter of the patient;
- either parent of the patient;
- any adult brother or sister of the patient;
- any adult grandchild of the patient;
- a close friend of the patient;
- the patient’s guardian of the estate.
The guardian of the estate may do the following for the ward:
- make financial decisions
- enter into contracts
- estate planning
- file lawsuits
- sell real estate
- apply for government benefits
The guardian has a fiduciary duty to investigate and pursue eligibility for government benefits to conserve estate assets.
In cases involving substantial assets, the court may require (or the family or the parties may request) a corporate guardian of the estate. All of the major banks and many of the mid-tier banks have trust departments that act as guardian of the estate. However, it should be noted that a bank will not act as guardian of the person.
To the extent specified in the order establishing the guardianship, the guardian of the estate will be responsible for the care, management, and investment of the estate. In some states, a guardian of the estate is referred to as a conservatorship.
The guardian of the estate must manage the estate frugally and apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward, his minor and adult dependent children, and persons related by blood or marriage who are dependent upon or entitled to support from the ward, or for any other purpose that the court deems to be for the best interests of the ward.
The guardian may make disbursement of the ward’s funds and estate directly to the ward or other distributee or in such other manner and in such amounts as the court directs.
If you’re ready to start getting your estate in order and secure your assets for the “worst-case” scenario, please give our office a call at 800-310-3100. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now.
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick was named the #1 Illinois elder law estate planning attorney by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care. Call 800-310-3100 for your free consultation now!