What Happens if I Need a Guardian?

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A guardian is a person who is given legal authority over another person because of reason of incapacity. If a court determines that a person is unable to make decisions for himself or herself, it may appoint a guardian. A guardian can be given authority over the person, his or her assets or both. The process involved in appointing a guardian is dependent on state law and the circumstances.

Determining Incapacity

What it means to be incapacitated also varies by the state. The standard may be different when a guardianship is desired to make decisions on behalf of a person instead of his or her finances may be different. A court may decide that a guardianship is warranted when a person cannot make responsible decisions for himself or herself. However, a person may still have capacity even if he or she makes bad decisions, so long as the person has a realistic outlook on the potential consequences. If a person does not have the ability to make good decisions, his or her capacity may come into question. Some states assess the ability of the person to make some decisions and limit the extent of the guardianship to only that which is necessary. Others use a framework of supportive decision-making, which allows the person to be involved in the decision-making process along with other concerned individuals.

Signing off on Guardianship

Some states allow a person to consent to a guardianship or conservatorship rather than having the issue litigated. Some states only allow consent to result in a conservatorship when only the personís finances will be impacted.

Power of Attorney

In some situations, a person may have a power of attorney put in place. A power of attorney may allow an agent to make decisions on behalf of the principal. If this power is durable, it will endure when the person lacks capacity. This designation allows a person to make financial decisions on behalf of the principal and to conduct financial transactions on his or her behalf.
A power of attorney for healthcare allows a person to make medical decisions on behalf of another person. If these appointments can provide adequately for the individual, they may be used instead of a guardianship. The court usually prefers to use guardianship as a last resort because it has a significant impact on a personís freedom.

Representative Payee

Another alternative to guardianship is a representative payee. This is an individual who is appointed by an agency to collect and distribute benefits for the individual, such as Social Security, Veteransí benefits, railroad retirement or welfare.

Petitioning for Guardianship

In many cases, the person wanting to be appointed as guardian must file a court petition stating why a guardianship is necessary and why he or she should be appointed as guardian. State law dictates what must be included in this type of petition. Some states may require all known family members to be listed on the petition and to be given proper notice of the proceedings. In some states, the person for whom guardianship is sought, the ward, is required to be at the hearing while other states only require that he or she be given notice of the proceedings. This petition is usually filed in the probate court in the county where the proposed ward resides.

Evaluating the Need for Guardianship

The court will usually schedule a hearing to evaluate whether to appoint a guardian. At the hearing, the court may examine evidence presented by the proposed guardian and the ward. This many include medical evidence of the incapacity or other evidence that establishes the need for a guardianship. Witnesses including family members, neighbors, doctors, healthcare providers or others.

There are often state laws pertaining to who can be a guardian. This may be someone who does not have a felony record and who is not currently a guardian over someone else. In some cases, the guardian may be a non-profit organization or a court-appointed individual who serves as a professional guardian or conservator.

Powers and Responsibilities of a Guardian

A guardian may have a number of important powers, such as being able to make health care decisions, legal decisions and financial decisions for the ward. The guardian may be able to act independently or may require approval from the court before taking certain action. The court may limit the decision-making powers of the guardian if it feels this is prudent. The guardian is usually required to provide reports to the court on an annual basis concerning the wardís health and finances.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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