Special Needs Answers reports on a recent Wisconsin case that highlights the importance of having back-up guardians in place in case the original guardian can no longer serve. They report:
Paul V., a 27-year-old man who has been severely disabled since birth, was placed under guardianship in Illinois, with the court naming his grandparents, whom he lived with, and a bank as guardians. Subsequently, Paul's mother, Vicki B., petitioned for and was granted guardianship in Wisconsin without disclosing that Paul already had guardians in Illinois. In 2003, a Department of Human Services in Wisconsin filed a petition to be named Paul's guardian because his mother and grandmother were in the process of pleading guilty to federal mail fraud charges. His mother and grandmother agreed to the appointment, but did not discuss with the court provisions for a successor guardianship so that Paul would not have to rely on a state guardian for the rest of his life.
Paul's aunt, Kristin, then petitioned the court to remove the Department as guardian and appoint her as successor guardian. The Department objected, arguing that under state law, a petitioner for successor guardianship must be an "interested party." Since Paul's original guardians had left no instructions for the court requesting that Kristin or another close family member have the potential to become a successor guardian, Kristen was unable to prove to the court that she was an interested party. Therefore, the court did not grant her petition, and Paul remained a ward of the state.
This case illustrates an important point: don't take anything for granted. Even in Paul's case, where his original guardians were clearly unable to care for him properly, they could have given input to the court on behalf of others who could have done a better job. This situation can also occur when a guardian passes away while still performing his or her duties. In these cases, simply inserting a brief request in your will naming your choice for a successor guardian could make that person "interested," and, therefore, eligible to care for your loved one after you are gone.
Backups are also a good idea when naming executors and trustees. Don't leave it up to a judge. Include backup planning in your estate plan.
