Overview of Guardianships:
A guardianship may become necessary if you or someone you know is no longer capable of making their own financial and/or personal care decisions. There are three steps in the guardianship process:
- The determination of mental incapacity
- Appointing a guardian for the purpose of carrying out the ward’s personal and/or financial affairs
- Accounting to the court regarding the Ward’s 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 avoided, the court will require an annual plan summarizing the past year and outlining the plan of care 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 guardianship will take over each of these important decision-making areas and will be required to solicit the court for permission to spend assets for the benefit of the ward, as well as to account for the ward’s assets and the ward’s care.
Limited Guardianships & Guardianships of the Property:
If an individual is capable of making their own personal decisions but incapable of making their own financial decisions, 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 could also be appointed if a minor child is a beneficiary in an estate and inherits money prior to the age of 18. This guardianship would also apply in the event of a lawsuit settlement payable to someone under the age of eighteen. Permission from the court would be required before finds can be used and an annual accounting is also necessary.
Upon attaining the age of eighteen, a child becomes an adult in the eyes of the law. This is true even for developmentally disabled children. A guardian advocacy is a summary form of guardianship designed for families with a developmentally disabled child. In a guardian advocacy, the ward’s prior condition and medical reports take the place of an incapacity determination and a Guardian Ad Litem attorney is appointed to represent the ward. As with other guardianships, guardian advocacies must be filed with the court in the county of residence and annual reports will be required. In most cases, the child’s parent(s) will be appointed as the guardian advocate.