Guardianship is a court process in which a judge will appoint a person to make decisions for another. The court will appoint a person to make decisions for another only when the person is unable to do so for themselves. If a person becomes incapacitated and has not executed a power of attorney, they may need a person to speak on their behalf.
In some cases, the guardianship is related to personal and medical decisions. In others, it is needed for financial situations. Because another is making decisions for the incapacitated person, a court proceeding is necessary, the court must be satisfied that the guardian is necessary and the court will supervise decisions of the guardian.
Two basic types of guardianship:
- Guardianship Over the Person – this type of guardianship is utilized if a person is unable, due to physical or mental infirmity, to make basic life and health decisions. The infirm person is referred to as the ward or incapacitated person;
- Guardianship Over the Estate – this type of guardianship is used if the person is incapable of making financial decisions on their own. The assets of the ward are referred to as his or her estate. In this case, the guardian will handle the financial affairs of the ward.
The court may appoint the same person as guardian over both the person and the person’s estate. In emergency situations, a court may appoint a temporary guardian to avoid imminent harm to the incapacitated person. This type of guardianship is often used if a person needs immediate medical attention, or stands to quickly lose substantial financial assets. This type of guardianship will only last for 10 days, or until a hearing can be held.
A guardianship is started by filing a petition in court. The petition must state why a guardianship is needed, the nature of the proposed ward’s disability, the name and address of the proposed ward, the type of guardianship sought. It must identify the close relatives of the proposed ward, and an outline of the likely assets of the incapacitated person.
The incapacitated person must be notified of the proceeding, and has a right to appear in court. The proposed ward has the right to be represented by an attorney in court. The spouse and adult children have a right to notice. If there are none, the incapacitated person’s parents, brothers or sisters must be notified. If living in a medical or nursing facility, the administrator of the facility is notified.
The court will hear evidence of the disability if necessary. It may require medical records be provided or testimony by the incapacitated person’s physician. The court has the authority to have the person examined by a medical professional.
The court may examine the background of the proposed guardian also. The guardian must understand the responsibilities undertaken. The rights and duties as a guardian are stated. If the guardian will undertake financial decisions of the ward, the court may order a bond be posted.
On a guardianship of the person, the guardian will normally determine where the ward resides, including admission to a medical or nursing facility. The guardian will consult with the ward’s medical providers to discuss the ward’s medical treatment.
On a guardianship of the estate, the guardian will establish control over the ward’s assets, including income received on behalf of the ward. The guardian will be responsible for payment of the ward’s debts and regular living expenses. The guardian must keep the ward’s income and assets separate from the guardian’s personal funds. In both cases, the guardian will report to the court on a periodic basis, no less than annually.
The Role of an Attorney
The guardianship process can be complicated and the proceedings will be foreign to those inexperienced in the area of law. An experienced attorney will understand the documents to be filed and the information needed to file for a guardianship. If not all documents are filed, or prepared incorrectly, the court may not grant the petition, or may require additional hearings, delaying the process.
The burden of proof is on the person seeking the guardianship to show the proposed ward is incapacitated. Because a person’s personal rights are being taken away to an extent, a court will require substantial evidence be submitted in a proper manner.
If the guardianship is approved, the guardian usually needs legal assistance on a periodic basis. The guardian will often come across situations when he or she is unsure if they have authority to act, and what the best course of action may be. An experienced attorney will prove invaluable in these situations.
Finally, the guardian will often need legal assistance in preparing the required reports and accountings for the court. He or she may also need representation at hearing. Because of the complicated nature of the proceedings and the fact that those appointed as guardians are not often experienced in making decisions for incapacitated persons, legal representation is always highly recommended.