In these unprecedented times that have resulted from the COVID-19 outbreak, estate planning has come to the forefront of concerns faced by many. Although generally not pleasurable and even an unsettling topic for many, planning ahead to protect and preserve assets in the event of death or incapacitation is a crucial process to work through. For many who have already approached this process, guardianship may be involved where the estate planning was done for someone who later becomes incapacitated. An incapacitated person is a person who either has a developmental disability or is unable to manage their property, provide self-care, or both. For those in this position, determining the continuing role and duties while in the midst of a pandemic can be confusing. This post addresses what to know if you are or wish to be the guardian for the estate of an incapacitated person and how you can ensure you are fulfilling your duties throughout the pandemic.

Who is a guardian, and how do I become one?

Guardians may either be of the estate or of the person. Guardians of the estate have duties that revolve around managing the incapacitated person’s assets, while guardians of the person are tasked with managing the health, personal needs, and safety of the incapacitated individual. In either scenario, a guardian may be appointed by the court after a person has filed a petition for appointment of guardianship. Any person may file the petition. The court will hold a hearing to determine whether the person petitioning to be appointed as guardian is fit to exercise the powers granted to a guardian. In appointing a guardian, the court will consider factors including any requests made by the incapacitated person and the relationship of the proposed guardian to the individual for whom guardianship is sought. If appropriate, the court will officially appoint the petitioner as guardian of the estate, of the person, or both depending on what is being sought. This post will focus on the duties of the guardian of the estate.

I am the appointed guardian of an estate; now what?

As a court-appointed guardian of an estate, there are several mandatory responsibilities. These include protecting and preserving the property of the protected person, observing the standards of care and conduct applicable to trustees while managing the property, and conserving property in excess of the protected person’s current needs. Guardians are responsible for the preservation of the incapacitated person’s property to the extent ordered by the court. Skipping the wordy legal language, essentially, guardians of an estate must oversee and manage the financial affairs of the protected person such that any and all actions are taken in the best interests of the protected person.

One of the most important roles that a guardian of an estate has is to keep thorough financial records. A guardian of an estate is required to file an accounting every two years. Guardians must diligently keep track of all funds belonging to the protected person, which should be kept separately from the guardian’s own funds. Statements and receipts should be kept for documentation and tracking purposes. It is also advisable to keep a personal record, such as a spreadsheet, where you can track deposits, expenses paid, and other transactions initiated in carrying out the role of guardian of the estate.

What can I do as guardian of an estate?

Guardians of an estate are granted several powers that are to be exercised as required to perform the responsibilities of a guardian. A guardian of an estate is authorized to invest and reinvest the property of the protected person, continue any business of the protected person, to bind all or any part of the guardianship property in a transaction for the benefit of the protected person, and several other enumerated powers codified in Indiana Code § 39-3-8-4. Importantly, exercise of any powers must be done in a manner such that any action is taken in the best interests of the protected person.

Guardianship during COVID-19

If you are the guardian of an estate, you should be aware of ensuring the person you are protecting is receiving any COVID-19 or other benefits he/she may be eligible for. This is part of your duty to take all steps that are reasonably necessary in obtaining public and insurance benefits for which the protected person may be eligible. If you believe the person you are protecting may qualify for such benefits, ensure you submit all applicable applications. With COVID-19, one new option is to apply for the Economic Impact Payment, or the stimulus check. You can find more information regarding who may qualify for this benefit through the National Consumer Law Center here.

As guardian of an estate, you also have a duty to plan for the financial impact of COVID-19 by developing and implementing a financial plan for the protected person that is tailored to his or her needs. You should coordinate this with the guardian of the person if you do not hold that role as well. This way, any financial decisions and planning can be ensured to meet the protected person’s care plan needs.

COVID-19 has also greatly affected investments; for guardians managing these assets, you are not expected to guard against all losses that investments may incur. However, you are responsible for taking reasonable measures in order to best protect the person’s investments. With that in mind, this means simply maintaining vigilance over tracking financial assets and continued monitoring of investments.

While guardianship of an estate may present a daunting responsibility, especially during a global outbreak, our attorneys are available for support through this difficult time. If you have questions or need guidance, contact our Estate Planning Team at CCHA to discuss your concerns and estate planning needs.