Guardianships are set up to protect and help people in need, such as an elder or loved one unable to care for their own financial or health-related well-being. As Court Appointed attorneys we handle all aspects of typical and contested Guardianship cases, including the appointment of a Guardian, litigation, preparation of annual reports, and final accountings. If you already are a Guardian we can help alleviate some of the duties if you need.
When Is A Guardian Required for an Adult?
It may be necessary to petition a court to appoint a legal guardian for persons:
Who have a physical or mental problem that prevents them from taking care of their own basic needs;
Who as a result are in danger of substantial harm; and Who have no person already legally authorized to assume responsibility for them.
Under some circumstances, it may be necessary for a court to appoint an emergency guardian, who can act on your behalf during a crisis (such as immediately following a car accident) until you regain your ability to make your own decisions.
What are a Guardian's duties?
The guardian makes decisions about how the person lives, including their residence, health care, food, and social activity. The guardian is supposed to consider the wishes of the incapacitated person, as well as their previously established values when making these living decisions.
The guardian is intended to monitor the legally incapacitated person, to make sure that the person lives in the most appropriate, least restrictive environment possible, with appropriate food, clothing, social opportunities, and medical care. A guardian may be required to post a bond unless the requirement is waived by the court. In most jurisdictions where a bond is required, waivers are routine.
How is a Guardian Appointed?
The precise procedure will vary to some degree from jurisdiction to jurisdiction. The typical steps are as follows: The person seeking the appointment of a guardian files a petition with the probate court for the jurisdiction where the allegedly legally incapacitated person resides. This petitioner is often a relative, an administrator for a nursing home or health care facility, or another interested person.
A petition is ordinarily accompanied by medical affidavits or other sworn statements which evidence the person's incapacity, and either identifies the person or persons who desire to be named guardian or requests the appointment of a public guardian.
The court arranges for any necessary evaluation of the allegedly legally incapacitated person. Often, this will involve the appointment of a "guardian ad litem", a person who is appointed to provide an independent report to the court on behalf of the allegedly legally incapacitated person.
It is possible to avoid the necessity of guardianship through estate planning. A good estate plan will include a medical power of attorney which will enable a trusted individual to make health care decisions for you in the event of incapacity, and a general durable power of attorney to permit a trusted individual to manage your personal affairs.
To a considerable extent, those documents can specify how you wish to live, and how you wish to be treated, in the event of disability - whereas a court or guardian may make decisions with which you would disagree. In most cases, when these documents have been executed in accord with the laws of your state, it will not be necessary for your loved ones to seek the appointment of a guardian or conservator should something happen to you - something that can be cumbersome and emotionally taxing at an already difficult time.