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Death of a Guardian

Judy and her husband, Bob, had been appointed guardians for their son, Bill, years ago when he turned 18.  Bill suffered a brain injury during his delivery at birth and had the mental capacity of an 8 year old.  Eventually, Judy and Bob placed Bill in a group home where he was well cared for.  Bob passed away 10 years ago but Judy continued to serve as sole guardian.  As her mental and physical health began to decline, however, she knew that she needed to find an alternate.  But then she died.

 So, what happens when a guardian dies?  Another one needs to be appointed. But that can take time, especially if there is no obvious successor.  In Judy’s case there wasn’t.    She didn’t have any suitable family members to serve and struggled with the decision.  In fact, she made the worst decision she could have, none at all.

When a medical emergency occurred with Bill after she died, that was a real problem because the non-profit organization caring for him didn’t have the legal authority to make medical decisions.  On the financial side of things, no one had access to the funds set aside for Bill, to be able to meet his care needs.

 Luckily, Bill’s medical crisis turned out to be not so serious but getting a substitute guardian in place took time.  Judy had discussed with the organization the possibility of having them serve but she never put anything into motion. So they weren’t sure if they should make application or not.  When there isn’t an obvious choice, time is wasted.  It isn’t clear who should take action first so everyone waits for someone else to step up.

 In Judy’s case, her legal and financial advisors helped out.  Eventually, the organization did petition the court to be appointed and, as I said, luckily Bill didn’t have a medical emergency during the 4 months it took to complete the entire process.  And while it appears to be the best situation possible for Bill, Judy left it to chance that all would work out well.

 The lesson is clear.  As we see many parents with adult disabled children age and pass away, it highlights the need for a succession plan before the parent dies.    Judy would have been best served if she had chosen a guardian and petitioned the court before she died.  The transition would have been much safer and smoother for her son, Bill.



  • Kelly Kaplan

    February 8, 2012

    My Mom currently has a Health Care Proxy and Durable Power of Attorney which is me — her daughter. Her doctor advised that I get a “competency or lack thereof” document that he will sign that states that she lacks decision making capacity. Is this really needed with the other two documents in place?

  • AmyWeiss

    February 9, 2012

    It really depends on how the original document reads. My best advice would be to call the office let us take a look at the original
    Proxy. Call us at 973-994-2287

  • Kathy Farrell

    February 27, 2012

    What happens when a guardian of a small child dies and the birth mother would proubly want him but she does not know him and the family of the guardian is very close to him and would want him. The baby was born a drug baby and moms life is always up and down. This would be in Calif. Thank you for your response.

    • AmyWeiss

      February 27, 2012

      My best advice is to contact an attorney in California.

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