Donna L. Courville Attorney Boutin Jones, Inc.
#ClaudeAmerica
Three parts: 1. Opening the Guardianship 2. Administration of the Guardianship 3. Closing the Guardianship
• Where? – Your county, your county clerk, your judge – Constitutional County Court has original probate jurisdiction • Who is on the team? – County Clerk Judge – Attorney for Applicant Applicant – Attorney Ad Litem (AAL) Proposed Ward (PW) – Others?
Types of Guardianships: 1. Guardianship of the Person (GP) 2. Guardianship of the Estate (GE) 3. Guardianship of the Person & Estate (GPE)
Kinds of Guardianships: 1. Minor 2. Disabled minor becoming an adult 3. Incapacitated adult
Timeline (in 3 parts): Application Filed Hearing Order signed (w/Dr.’s Letter) PW present GPE appointed AAL appointed Testimony Oath & Bond PW served Burden of Monthly Allow. Answer filed proof met? AAL paid & discharged
Did they meet the 20 day deadline? ◦ Oath and Bond filed within 20 days of Order = Qualification ◦ Letter ters of Guardians ardianshi hip can only be issued with BOTH are in place (Oath & Bond – when the guardian “qualifies”) ◦ LETTERS OF GUARDIANSHIP EXPIRE – WHEN? 12 MONTHS + 60 DAYS after qualification/date of issuance
GP Duties ◦ Physical care and custody of the Ward ◦ ANNUAL REPORT: must be filed each year to renew letters of guardianship Handout a GP “List of Duties” Go over duties with Attorney for Applicant and Applicant (provide sample form report) Bond to protect and with common sense
GE Duties ◦ Protect and prudently manage the Ward’s assets ◦ ANNUAL ACCOUNT: must be filed each year to renew letters of guardianship Handout a GE “List of Duties” Go over duties with Attorney for Applicant and Applicant (provide sample form account) Bond to protect and with Safek ekeeping eeping Agr grmts ts
Types of Bonds: 1. Corporate Surety Bond (Insurance Co.) 2. Cash Bond (deposit with County Clerk) 3. Personal Surety Bond (2 people, use as last choice) Protect the Ward, the Judge, the County Bond = (Assets – Real Estate + Income for 1 Yr)
FIRST 30 DAYS – WHAT IS DUE? The Inventory, ventory, Ap Appraisemen praisement & L List t of Claims ms ◦ Most Important – don’t let this slide! ◦ Call or send out notice if LATE ◦ Encourage filing what they know ASAP ◦ Amend the Inventory later as more assets are discovered ◦ Be sure Bond is adequate and Safekeeping Agreements are in place
Some of the Other 30 Day Items: ◦ Notice to Creditors ◦ Applying for Monthly Allowance (if not initially requested)
Annual Report by GP: ◦ Minors: appropriate housing, school, activities, health care ◦ Disabled adults: appropriate housing, access to federal and state benefits, school, activities, health care ◦ Elderly adults: appropriate housing, access to federal and state benefits, activities, health care ◦ Declining, Improving, Same?
Annual Account by GE: ◦ Beginning balances should match Inventory ◦ Account for all monies spent (list of disbursements) – should be aligned with monthly allowance ◦ Expenditures outside monthly allowance should have pri rior or Court Approval or be ratifi tified ed now ◦ Ending balances should match “Verification of Funds on Deposit” signed by third party officer
Annual Account Continued: ◦ Ending balance and asset values (mini-Inventory) should support Bond Amount; if not, incre/decre ◦ Increase/Decrease Monthly Allowance ◦ Calculate and award GE and/or GP compensation ◦ Order der approving should also include instruction to Coun unty ty Cler lerk to renew Letters of Guardianship ◦ Payment of Attorneys Fees must be court approved by Motion & Order
Annual Supervision Required for the LIFE of the Guardianship ◦ Create a system of reminders ◦ Track each guardianship; Bonds ds must t be current! rrent! ◦ Call, send letters, and issue Show Cause Orders as needed ◦ County Clerk and Judge – your responsibility is to protect the most vulnerable
Three Most Common Reasons to Close a Guardianship 1. Minor reaches age of majority = 18 2. Death of Ward 3. Restoration of Ward (i.e. incapacity removed, health restored)
Notification Issued By Court: Tracking Shows Ward has reached age ge 18 – send out Notice prior to the date and request Final Report and Final Account County Clerk/Judge receive notice by the Filing of a Final Report and Final Account of the Death ath of a Wa Ward Guardian or Ward file application for Restorati oration on of Wa Ward
3 Steps to Close (AA AAL ma may be e appo pointed inted): 1. File Final Report and Final Account ◦ Order Approving & Instruct Who Receives Assets 2. File Application to Close, Release Bond and Discharge Guardian ◦ Receipts attached showing assets distributed ◦ Final payment of authorized expenses, fees, etc. 3. Order Releasing Bond & Discharging Guardian
Minor reaching age 18 ◦ Final Report ort – same info; concluding with birthday ◦ Option to extend to age 25 (Management Trust) ◦ Order Approving the Final nal Ac Accoun ount includes instruction to Guardian or to Coun unty ty Cler lerk k (if in the registry of the Court) to turn assets over to new adult (age 18) ◦ Release Safekeeping Agreements ◦ Release Bond
Death of Ward ◦ Final Report ort – same info; concluding with death ◦ Order Approving the Final nal Ac Accoun ount includes instruction to Guardian or to Coun unty ty Cler lerk k (if in the registry of the Court) to turn assets over to personal rep of estate or heirs legally entitled to estate ◦ Release Safekeeping Agreements ◦ Release Bond
Restoration of Ward ◦ Final Report ort – may not be necessary as the Hearing to restore will Order the Final Account, but unlikely to need any final report on the person ◦ Order Approving the Final nal Ac Accoun ount includes instruction to Guardian or to Coun unty ty Cler lerk k (if in the registry of the Court) to turn assets over to Restored Ward ◦ Release Safekeeping Agreements & Release Bond
Certified Court Order Needed – Where? Order Approving Final Account – includes language to release Safekeeping Agreements ◦ Banks need a Certified Order to release funds Order Closing the Guardianship, Releasing the Bond and Discharging the Guardian ◦ Insur urance ance Company mpany needs a Certified Order to release the bond
Beginning = Opening Middle = Administration End = Closing Guardi ardianship anship Requires uires: : Collaborati aboration on, , Organ ganiz izati ation, on, Check eck Lists ts and d Comm mmon n Se Sense nse No member of the team can drop the ball Communication and follow-up is critical throughout the process
Donna nna L. Courvil rville le At Attorney rney Bo Boutin in Jones es, , Inc. 555 Capitol Mall, Suite 1500 Sacramento, CA 95814 Tel / 916.321.4444 Direct / 916.231.4084 Fax / 916.441.7597 dcourville@boutinjones.com www.boutinjones.com
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