What Is Legal Guardianship?
Legal guardianship is a legal relationship in which an adult takes on responsibility for the care of someone under the age of 18, or someone who has been found unable to care for themselves, due to physical or mental impairment. The legal guardian is appointed by a judge, and given the authority over the personal affairs – such as financial, health care, education, and other decision making – of the child or adult for whom they are guardian.
Once appointed a legal guardian, they are legally required to act in the best interests of the individual, whom is now their legal charge. For this reason , the judge will only appoint them as a guardian after being satisfied that the nominee is fully capable and suitable for the role.
In addition to acting in the best interests of the individual, the guardian is also responsible for the filing of reports with the court, detailing how the individual’s needs are being met, and how the responsibilities the guardian assumes are being carried out.
Legal guardianship may be needed for several reasons, including situations when either the parents of a minor child are unable to care for them, or when a person has been diagnosed with Alzheimer’s disease, severe disability, or a traumatic brain injury.
Factors That Drive the Cost of Legal Guardianship
Moreover, the court may defer to the discretion of the attorney. There may be some "reasonable expenses," such as the cost of transportation to and from the attorney’s office or court, but such costs should be small in proportion to the total. These expenses should be billed according to the particular fee structure for your lawyer. They should not be multiplied by the number of hours the lawyer spends. The bottom line is that some attorneys will charge a "blended rate" and treat all guardianship work as billable hours, while others will bill only a portion of the hours spent. Many people believe that the attorney should not bill the time it takes to fill out 50 pages of forms for the Guardianship Filing at the court clerk’s office. Because each attorney is different, be sure to find out the exact policy and ask about it in advance. Either way, the attorney’s fees must be reasonable under the circumstances.
While attorneys may charge differently, for the most part, fees may be used as a proxy for complexity. The more time an attorney spends, the more complex the matter likely is.
The two most significant court costs are the filing fees and the bond. As with court costs generally, guardianship filing fees vary by jurisdiction, but they are generally several hundred dollars. The bond must likely be posted before the petition is filed, so it is usually considered a pre-filing cost. The cost of a bond is based on the size of the assets. Although not a "court cost," a court reporter or transcriber is often required to prepare transcripts that allow the proposed ward to contest the appointment of the guardian. In some states, any such costs are assessed to the petitioner.
Some of the attorney fee variations also involve litigation. For example, if the guardianship proceeding is opposed, it will run longer than one that is not, and thus cost more. This is particularly true if any parties decide to contest the parentage of the proposed ward’s children, or if a competing guardianship is filed. Contested hearings require additional paper, court time, attorney time and often the expenditure of your own money for the costs of the monthly reports, budget plans, security, and accounting. Lastly, depending on your state, the declaration of incapacity may require a qualified evaluator to perform an assessment on behalf of the court. Such an evaluation is more costly, but also more likely to require "lay opinion" from the treating doctor or another health care provider.
Finally, it is not mandatory to hire an attorney to assist with a guardianship. Some people may prefer to rely on their own ability to represent themselves, and to represent their particular needs.
Guardian Attorney Fees
As a guardian of a person or estate, you are required to retain an attorney in Georgia for guardianship matters. The guardian’s attorney has 2 duties: 1) prepare pleadings and guardianship documents; and 2) appear at hearings. In lieu of having your attorney appear at hearing, the undersigned provides the ability to have the hearing by phone which is a very cost effective way to handle court appearances.
In general, attorneys handling guardianship matters charge between $225 and $350/hour. If there are hearings then the attorney needs to appear at court with you. The amount of time for each hearing and the number of hearings depends upon the circumstances of the family and the incapacity of the ward. The average if there are hearings is 10 hours. Therefore, in general, the average cost for attorney services in a guardianship is between $2,250 and $3,500. However, if there are issues with creditors, family disagreement or more than one hearing then an attorney’s fees could total $5,000 and up.
In addition to attorney time, a filing fee of $205.00 needs to be paid to the clerk of court and there are a couple of costs associated with the preparation of guardianship bonds that need to be paid.
An average cost for guardianship proceedings of the person and property in probate court with the undersigned is $1,800.00.
We also charge a flat fee for proxy guardianships for incapacity due to dementia, Alzeimer’s disease and other traumatic brain injuries.
Court Filing Fees and Other Costs
Court costs and filing fees can vary depending on the type of guardianship proceeding. In an involuntary guardianship proceeding, a number of costs accrue by virtue of having to give notice to all of the parties involved, most of whom require service by process servers. Additional filing fees include the initiation of the petition, the filing of a bond, and the court’s approval of the bond through a subsequent hearing. Annual accountings and auditing of the account will incur more costs for filing and attorney review. For purposes of this article, the amounts quoted are approximated from Hillsborough County’s Clerk of Court website.
Involuntary Guardianship Filing: A filing fee of $408.
Bond: A bond administrative fee of $50, plus a fees of $1.75 for every $100 of value stated in the bond. This "value" is the ward’s net worth, a step that takes place after the Court appoints a professional accountant to review the ward’s assets and ensure the accounting is accurate.
Clerk & Accounting Office Services: A $5.00 fee to record the appointment of guardian, and an additional $20.00 fee for the guardian’s annual accounting. The accounting and auditing service fees are $165 for the yearly audit and one hour of the Court’s time at $175 per hour, for a total of $340.
These Court Fees and bond amounts may not be paid by the ward. It is important to understand that the Ward’s income will be subject to the costs of guardianship, but not his or her assets.
Other Expenses Associated With Guardianship
The court may also require that a private investigator provide a report as to the capacity of the alleged incapacitated person. It is not uncommon for a guardian ad litem to be appointed at the outset of a guardianship proceeding who will then provide a recommendation to the court. The costs of both the investigator and the guardian ad litem are paid by the petitioner. This would be in addition to the attorney’s fees, which will also need to be paid.
As a matter of course, the court always requires that the prospective guardian undergo a background check. In some cases , the court may even have to appoint a separate attorney for the ward just to perform the background check and competency proceeding. Other expenses may include the cost of a bond or fiduciary liability insurance, particularly where the petitioner is sought to be the guardian of an estate and there is a substantial asset base involved.
Some additional miscellaneous expenses include the costs of publishing and the first hearing, which may involve filing a petition, obtaining a guardian ad litem’s report, and attending the hearing on the incapacity of the subject. There may be additional costs for obtaining medical records or the like, or even obtaining expert testimony to possibly appear before the court.
How to Minimize the Cost of Legal Guardianship
In addition to looking at eligibility for reduced fees and payment plans, there are ways to reduce the cost of obtaining a legal guardianship through pro bono work, clinic consultations, and state resources.
If you meet the household income criteria of your local legal aid society and other programs, you can receive a wide range of legal services free of charge. Depending on where you live and what kinds of legal problems you have, an attorney may help you in any or all of these areas:
Legal assistance may also be available from law school clinics, where law students get hands-on training under the supervision of a licensed attorney, as well as from state bar associations, which generally have lists of attorneys who are willing to provide pro bono services as well as volunteer opportunities for interested attorneys.
If you or your ward are on state benefits, then you may already be receiving certain estate-planning services for free or at a low cost. Alternatively, you can use these benefits to waive the guardianship requirement altogether. And finally, if you or your loved one are in a state hospital, some states provide free guardianship services for patients in psychiatric hospitals.
FAQs About Guardianship Costs
How much does it cost to hire a lawyer to help with the guardianship process?
The cost for hiring a lawyer to assist you with your guardianship case varies greatly, depending on the situation and type of case. Typically, guardianship cases involving an elderly parent with dementia or a special needs child and are uncontested may range from a few hundred dollars to a couple of thousand. If there are any issues that need to be resolved it will probably require more time and possibly more hearings, court time, another evaluation of the person with diminished capacity and the cost may easily be upwards of $5,000. Contested cases or cases that require additional attorney time, termination of guardianship, disputes between co-guardians, modification of the original guardianship case, often cost $10,000 and above.
Will my loved one’s income support the legal guardianship costs through my lawyer’s fees?
If your loved one has income available, the cost of a guardianship will likely be covered back to the date of the petition filing. Guardianship proceedings and its expenses should be discussed with your attorney early on to determine how the costs will be covered. Often the initial retainer for the attorney is paid by a family member and is reimbursed by the income of the person subject to guardianship. There are many methods to cover the cost of guardianship, such as through a spouse or child’s income or through a special needs trust. Payment for the costs associated with the guardianship process can be addressed with your attorney during your initial consultation.
Will there be additional legal fees for the legal guardianship process besides the attorney’s fees?
Yes, the fees aside from the attorney’s fees are called "costs" . Those might include court costs, filing fees, sending legal notices, copies of legal papers, court reporters, doctors’ fees, nursing home consultation fees, guardianship visitation fees, and other like charges. Be sure to ask your attorney what kind of additional fees can be expected for your guardianship case.
What happens if I can’t pay my attorney’s fees for the guardianship case?
In cases where the person subject to guardianship receives a monthly income or has assets, those fees may be requested from the court. The request is typically made within two months of filing the petition and during the hearing your attorney submits an inventory of the prospective ward’s assets and liabilities and will ask the court to approve payment of costs and attorneys’ fees from the estate or income of the ward. If the prospective ward receives no monthly income or his/her income is limited, in cases where there are no assets to pay the fees, the person seeking to be the guardian must pay the costs of the lawsuit. The guardian may be able to request reimbursement for their out-of-pocket costs, such as travel or other reasonable expenses if the guardian has been approved as a guardian and approved for payment of additional expenses. Otherwise, who pays the costs and fees of the guardianship may depend on the nature of the guardianship and the financial circumstances of the prospective ward, guardian, and the requested benefits. A personal representative appointed may qualify for reimbursement of costs and attorneys’ fees from the estate and/or from the income of the subject to guardianship. However, a financial friend, who is not a personal representative approved to receive compensation, usually pays the expenses out of pocket.