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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 37918
Experience:  I provide family and divorce law advice to my clients in my firm.
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Can you tell me if someone wants to have a guardian appointed

Resolved Question:

Can you tell me if someone wants to have a guardian appointed for them, what does that guardian actually do & control? What if the person doesn't agree with the guardian or what rights does the person have?
Submitted: 1 year ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

A "guardian" is someone who tends to assist with either the person's health or medical condition (which is known as being a 'guardian of the person' or a conservator), or with general responsibility with that person's finances such as properties and assets (known as 'guardian of the estate'), or someone who does both those duties (known as a 'plenary guardian'). That person, regardless of their role, is responsible with assisting someone who is incapacitated or incapable of making those decisions themselves and becomes responsible for issues such as ensuring that medical appointments are made, fees are paid, and that medical coverage is obtained. If this is a plenary guardianship position, then that person really controls almost all aspects of that person's life, so putting a proper guardian in place is of paramount importance. Once a guardianship is set that person has the controlling voice, so if the other party does not agree with the guardian, that person must still abide by the guardian's suggestions. this may create instances of conflict or outright violations. The guardian is bound by a formal fiduciary duty to make decisions that benefit the other party and not himself.

Hope that helps.

Customer: replied 1 year ago.

Requesting more info from Dimitry, Esq.


 


I’m talking about my sister; she’s been on long term disability since 2007. A second disk fusion in 2006 a week after her husband died very unexpectedly caused spinal cord & nerve injury. She’s in pain 24/7. A CT scan or MRI showed several white matter/lesions in her brain which cause her to black out, short term memory loss, repeats things she’s told people several times thinking it’s the first & blurred/double vision at times. She’s had one to four major surgeries a year since 2000 except 2010 and 2012 for a several reasons (gastric by-pass, disk fusions, surgery on her right carotid artery in 2011 & usually additional surgeries due to complications). The surgeon who operated on her carotid artery said a section of it was missing after an auto accident and when he repaired it all of her “brain damage” symptoms would be reversed. There were complications, infections & additional surgeries ending with the graft working its way out of a draining hole she had on her neck for 4 months & being removed. We went to the University of Michigan to see one of their top vascular surgeons only to find out that her symptoms were coming from the back of her brain & all the surgeries on her carotid artery were unnecessary & they increased her symptoms. She told me that she didn’t feel comfortable making some decisions on her own, she’s overwhelmed trying to maintain a modular home, dealing with mail, keeping track of her meds, appts., etc. She also surrendered her license due to her black outs & can no longer drive. She has scripts from her neurologist that she is disabled, needs attendant care/housekeeping assistance 6-8 hrs. /day 5-6 days a week, nurse, social worker, in home physical therapy, etc.


 


Medicare has approved these services & she’s had 6 or 7 companies come in, due an evaluation, a nurse & social worker comes maybe twice & a physical therapist for a week or two & that’s it. She’s can’t handle things & needs someone to get her the services she needs, help her fill out forms, help making financial decisions & dealing with several issues. She’s smart, but has bouts of depression for 3-4 days at a time because she’s alone & her living room looks like a file cabinet blew up in there. The state did an evaluation & denied her getting a guardian which she truly needs. How else can she get a guardian (not the one you said had “complete” control)? I work full time & can only help her on weekends.


 

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

If the state found that she is still competent and does not need a full-time guardian, she can potentially provide someone with a 'power of attorney'. This POA could make decisions on her behalf, make calls, schedule appointments, and so forth. The difference is that a POA is appointed by the principal (the person herself) and the principal retains the right to overrule the POA or terminate that relationship, something that a guardianship no longer provides. You sister, for example, can grant you POA rights and ask that you assist her with such actions going forward.

Good luck.

Customer: replied 1 year ago.

Dimitry,


 


This is my last reply; your service has been excellent & will be rated so after one more answer. My finances (college, books, etc.) are very strained, so I will rate & add a bonus on Wednesday (payday) I believe you deserve. I know I've taken up a lot of your time; I've spent a tremendous amount of my time which I don't have to try to help her & it's taking it's toll on me.


 


Your last answer was upsetting because it doesn’t get her position under control. Family/friends we would trust/choose are too busy dealing with their own issues to commit to POA. After several weekly 2 or more hour sessions with her neuro psychologist, she had enough data to measure my sister’s IQ. It’s 126 (9 pts. below genius), but doesn’t help her much with her brain damage symptom & that’s why once she gets assistance to get organized, all the issues she’s dealing with off her plate, caught up on bills, medical expenses, etc., I think she’ll be able to handle most things herself because she won’t be so depressed, stress & overwhelmed. She’s already thinking a condo would be better with less maintenance & retiring ASAP. She’d like to wait longer since every year she stays on LTD, her years of service & retirement amount will increase. She already found out she’ll continue to get her SS disability ($1,855) & widow benefits ($112) even though she’s only 54. She’s trying to get info on how to receive her retirement amount. She can get over $200,000 in a lump sum or monthly benefits. I don’t think her conditions will have much effect on her life span, but if she designates a surviving beneficiary (kids) to continue to receive benefits, her monthly income is decreased a good amount. She planned using a portion of the money for car repairs, paying medical bills & getting her modular home in shape to sell, etc. & putting the rest (a majority) of the lump sum into some type of IRA accounts with one she can withdraw for emergencies (most months, she’s had some type of unexpected expense). Almost every month lately, she hasn’t been able to even buy bread or milk for a week or so before her SS check comes which also increases her stress & depression tremendously. She has 35 years of service & she could continue accruing them & her retirement amount at least 10 more years, but she’s tired of being broke, if she puts her money into some type of “safe” IRA, that money will be earning interest. She thought about that herself, but needs to consult her tax preparer & and some type of investment/financial specialist to find out the tax implications, etc., realizing that retirement money has to last the rest of her life & if it’s gone before, all she’ll have left will be her SS income.


 


But that doesn’t solve the problem of getting attendant & housekeeping services her neurologist has written scripts for & Medicare has approved which are detrimental to her physical & mental well-being.


 


Any suggestions?

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up, Cheri.

The one suggestion may be looking into an annuity. Annuities can provide a stable payment for a period of time or the rest of her life which then potentially permits your sister to plan her finances and futures accordingly. The downside is an annuity,once annuitized, no longer earns money and wil be set at the same payoff amount until those payments terminate, be it for a specific length of time or until her death. An IRA is not a bad idea but because she is under 59 1/2, should she need to withdraw those funds early for an emergency, she will be hit with a penalty by the federal government. As her current financial situation is somewhat dire, an IRA may simply not be a wise investment if she legitimately believes that it is possible for her to need the money earlier.

Good luck.

Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 37918
Experience: I provide family and divorce law advice to my clients in my firm.
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