Guardianship should always be the choice of last resort and can often be avoided by having up-to-date advance directives, such as Durable Power of Attorney and Designation of Health Care Surrogate forms prepared by an experienced estate planning attorney. However, if such measures are not in place and a person becomes incapacitated, guardianship may become necessary. The purpose of a guardianship is to remove legal rights from the incapacitated person and delegate them to the guardian. If someone you know is no longer capable of making informed financial and/or personal care decisions, a consultation should be scheduled to discuss whether guardianship is the best option.
There are three steps in the guardianship process:
- A court-ordered determination of mental incapacity, based on independent examinations by persons appointed by the court
- A determination by the court that there are no less restrictive alternatives to guardianship, such as power of attorney
- The appointment of a guardian for the purpose of carrying out the ward’s personal and/or financial affairs
Guardianship of the Person:
A person may have little or no assets that require the appointment of a guardian but a guardian may still be required to make personal care decisions, such as housing, medical care, and personal care. Although financial accountings are not required in this type of guardianship, the court will require both an initial plan and every year thereafter, an annual plan be filed by the guardian outlining the care plan for the upcoming year.
A plenary guardianship may be necessary if a person is incapable of making both financial and personal care decisions. The court-appointed guardian will take over each of these important decision-making areas and will be required to petition the court for permission to spend assets on behalf of the ward, as well as to account annually to the court for the ward’s assets and the ward’s care.
Limited Guardianships & Guardianships of the Property:
Guardianships can be specifically tailored to the needs of the individual. If an individual is capable of making their own personal decisions but incapable managing their finances, a guardian of the property would be appointed to oversee the proper management of the ward’s assets. An annual accounting to the court would be required.
A guardian of the property is also often necessary if a minor child is a beneficiary in an estate and inherits any assets prior to the age of 18. This guardianship would also apply in the event of a lawsuit settlement payable to a minor. Permission from the court would be required before funds can be used and an annual accounting to the court is necessary.
Upon attaining the age of 18, every child becomes an adult in the eyes of the law. This is true even for developmentally disabled children. Guardian advocacy is a less restrictive form of guardianship designed for families with an adult child with a developmental disability. In a guardian advocacy, school records or medical reports which document the disability take the place of an incapacity determination. As with other types of guardianships, a guardian advocacy case must be filed with the court in the county where the Ward lives and annual reports will be required. If no property is involved in the guardian advocacy, the proposed guardian advocate is not required to hire an attorney.