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By Bernard A. Krooks, Certified Elder Law Attorney 

With the recent news concerning several high-profile individuals being subjects of guardianship, we thought it would be a good idea to discuss how expensive guardianship can be and what you can do to avoid it. 

If there is someone who you care about who is having difficulty managing their personal or financial affairs, they may need a guardian. Guardianship in New York is supposed to be the least restrictive form of intervention for a person who cannot manage their own affairs. However, the least restrictive does not necessarily mean that it is not expensive. 

Here’s a summary of the expected costs: 

1. When you file for guardianship for someone else, the legal papers you and your attorney draft must be filed with the court and served on the person you are seeking guardianship for. The court filing fees and process server fees can run several hundred dollars. 

2. Your lawyer’s fees will be several thousand dollars, and up, especially if you hire an experienced guardianship law firm to represent you. However, if your case is contested then the fees will be much higher. For example, if you file a guardianship petition seeking guardianship of your mother and your brother hires an attorney to contest the guardianship in any way, then all bets are off as to what the guardianship will cost. Among other things, your brother may claim that mom does not need a guardian, or he may disagree with you as to who the guardian should be. This is called a contested guardianship, and there is no way to predict the total costs involved. Suffice it to say that it will cost much more than an uncontested guardianship proceeding. Your legal fees will be your responsibility regardless of how the proceeding turns out. In some cases, your legal fees can (subject to court approval) be reimbursed from the incapacitated person’s resources if you are successful in obtaining guardianship. However, most lawyers will expect to be paid out of your funds while they are working on the case, and not wait until someone has been appointed guardian who has access to the incapacitated person’s funds to pay certain expenses, including legal fees. 

3. In addition to your own lawyer’s fees, the court may appoint an attorney for the person you are seeking guardianship for. These fees can be several thousand dollars. Fortunately, in most uncontested cases, there usually is no need for a court-appointed lawyer. 

4. The court evaluator is someone else who is appointed by the court to be the eyes and ears of the court and who files a report with the court describing your family member’s circumstances. In most cases, this person is a lawyer despite the fact that this person does not necessarily perform a legal function. The cost for that investigation and report is frequently in the range of a couple to a few thousand dollars. 

5. If someone is appointed guardian of the property, they are typically required to obtain a bond. The premium for this insurance policy can be paid from your family member’s assets. The cost of the bond varies by the size of the estate being managed. 

As you can see, the fees can add up pretty quickly. Moreover, if the guardian needs legal assistance after the appointment, there could be additional fees incurred, depending on the complexity of the guardianship. 

If you and your family are interested in taking the necessary steps to try to avoid guardianship, make sure you and your loved ones have executed advanced health care and financial directives such as a health care proxy, living will, and durable power of attorney. In addition, you should discuss your wishes with the people you appoint as your agents under these documents. By taking these steps you will reduce the likelihood that guardianship will ever become necessary. Nevertheless, sometimes guardianship becomes necessary even if you have taken care of your estate planning in advance. For example, if the person you appoint as power of attorney is not doing their job properly, someone may commence a guardianship to try and have the power of attorney revoked. 

While guardianship can be expensive, there are things you can do to minimize the likelihood that your family will go through this process. As part of your overall estate plan, make sure you take the time to think about who you would want to manage your affairs if you can no longer manage them yourself. This can go a long way towards saving your family a lot of money and heartache.

Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is a past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). Mr. Krooks may be reached at (914-684-2100) or by visiting the firm’s website at www.littmankrooks.com.