How to Mitigate Risk as a Plenary Guardian
In the United States, there are several types of guardianship options available, depending on the circumstance and the State in which your client resides.
One of these guardianship classifications is plenary guardianship. Plenary guardianship occurs when a person is appointed as a guardian by the courts to handle all legal and financial matters for an individual deemed incapacitated and completely unable to care for themselves.
A plenary guardianship can be a valuable option enabling you to act on your client’s behalf while ensuring their wishes are honored.
Who Establishes Plenary Guardianship?
A plenary guardian can only be appointed by the courts and is, therefore, a decision that must be made carefully and thoughtfully.
The State of Pennsylvania, for example, has stringent and specific guidelines to follow when requesting plenary guardianship. In addition to the names and addresses of the incapacitated individual and their family, the person petitioning for plenary guardianship must also provide:
- The reason for requesting guardianship
- The steps taken to find alternatives to guardianship
- The specific areas of which the guardianship is to cover
- The qualifications of and proof of no conflict of interest for the proposed guardian
The courts will then schedule a hearing no sooner than twenty days after receiving this documentation to make the final decision.
Alternative Guardianship Structures
The precise differences between a plenary guardian, limited guardian, and power of attorney vary by state. However, the table below outlines the most common differences.
|Plenary Guardian||Limited Guardian||Power of Attorney|
|Individual lacks all capacity to make decisions||Individual lacks the capacity to make most decisions||Individual can make decisions, but at diminished capacity|
|Must be appointed by the Courts||Must be appointed by the Courts||Authority delegated by the individual with diminished capacity|
|Guardian can make all decisions regarding individual’s life and finances||Guardian can make specific decisions delegated by the Courts regarding the individual’s life and finances as outlined by the Courts||Attorney assists in handling certain matters on the individual’s behalf|
|Automatically terminates when the individual dies||Automatically terminates when the individual dies||Automatically terminates when the individual dies|
If you are interested in learning more about Powers of Attorney, check out our 2021 article on powers of attorney and living wills.
Risks to Consider When Acting as Plenary Guardian
Suppose you or someone you are advising has been appointed Plenary Guardian. In that case, you can take steps to ensure risk is mitigated both in respect to your decision making the interests of the incapacitated individual.
- Keep assets in interest-bearing and low-risk securities
- Track all bills paid for the individual, and only use accounts included in the guardianship
- If there is property included in the guardianship, lease the property and collect rents
- Maintain any property included in the guardianship to preserve the value
Mitigating Risk at End of Life
All guardianships and powers of attorney dissolve automatically when the individual/ward dies, at which point their will and estate take over.
Establishing family lineage early for an elderly or unwell ward can be critical to ensure their end-of-life wishes are carried out, especially if they die intestate.
Assisting with an incapacitated individual near the end of their life can create complications if the identity of their family is not clear. As a legal and trust professional, you need to be wary of heir hunter firms, which you can learn more about in our blog titled “How HeirSearch Mitigates Fiduciary Risk During Probate.” If you cannot establish heirship or beneficiaries for an individual under the care of a guardianship, HeirSearch can help.
Do You Need Help Establishing Heirship for an Incapacitated Individual?
At HeirSearch™, we’ve seen it all. If you are a plenary guardian, or are advising someone who is, and need to establish heirship to satisfy the court, HeirSearch can help. We offer no-cost, no-obligation consultations, even if you are not planning to start a search right away.
Since 1967, we’ve successfully completed tens of thousands of worldwide searches. HeirSearch’s professional researchers help plenary guardians and their advisors through qualified assistance identifying and locating missing heirs to an estate.
Feel free to reach out with any questions — we look forward to connecting!
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As the industry’s leading forensic genealogy experts and heir finders, We Find Missing Heirs a Better Way®. We can help with even the most complex probate cases, spanning multiple genealogical connections and geographies.
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