A Guardianship involves the appointment of one person, called the “Guardian”, to exercise the rights of another person who is incapacitated, called the “Ward”. The appointment is made by a Court, and can be for the rights related to personal care, called “Guardian of the Person”, rights related to finance and business rights, called “Guardian of the Property”, or all rights, called a “Plenary Guardian.”
What is Incapacity?
There are several kinds of Incapacity. For instance, people under age eighteen lack legal capacity and need a Guardian to exercise their property rights if they acquire property of significant value, file a lawsuit or wish to enter into a binding contract. A person may be born with a developmental disability: Autism, Spina bifida, CP, Prader Willi Syndrome or any childhood diagnosis accompanied by diminished capacity resulting in a need for assistance in the exercise of some rights. Persons of any age may suffer brain injury. Trauma to the head, anoxia (lack of oxygen) or other medical complications sometimes result in injuries to the brain that can render a person incapacitated. Finally, there is the incapacity of dementia. Most often seen in the elderly, this is actually a broad category of disorders including Alzheimer’s, Lewy Body, Parkinson’s and Vascular Dementia, caused by a stroke or Transient Ischemic Attacks.
How is a Person Determined to Be Incapacitated?
A judicial determination of incapacity removes some or all of a person’s rights but should be avoided whenever possible. If unavoidable, it must be coupled with the least restrictive alternative to guardianship possible or, if no such alternatives exist, with the least restrictive form of guardianship. When an allegation of incapacity is filed in the Court, a committee of three examiners is appointed to evaluate the Ward. The examiners’ reports and any other relevant evidence are presented to the Court and, if appropriate, an order determining incapacity is entered which removes some or all of the Ward’s rights and gives the guardian the right to control either the person or property, or both, of the ward.
Do All Incapacitated Persons Need a Guardian?
The appointment of a guardian is a last resort. If there are less restrictive ways to protect a person in need of assistance, those should be considered first. In fact, a Court will inquire about alternatives before appointing a Guardian. It is important to see if a person has sufficient capacity to voluntarily appoint a trusted individual to serve as agent under a Durable Power of Attorney or Health Care Surrogate Designation, most times eliminating or postponing the need for a Guardian.
Are There Different Types of Guardianships?
• Voluntary Guardianship - A person who has capacity, but who is having difficulty managing their financial affairs because of health problems or infirmity due to aging, may request the Court “act” as if the person is Incapacitated and appoint a Guardian to oversee the person’s financial affairs. Similar to a Power of Attorney, the Ward may choose the person who will act on their behalf and only grants that agent authority over specific financial affairs. Unlike a Power of Attorney, only the Court may establish a Voluntary Guardianship and, while the Guardianship exists, the Ward’s rights are suspended. As with all forms of Guardianship, the Guardian’s activities are subject to ongoing judicial supervision and annual reporting requirements. Voluntary Guardianship is only advisable when necessary to avoid one’s own poor decisions or where ongoing court supervision is desired.
• Guardianship based on a Determination of Incapacity - If a person has been determined to be incapacitated by the Court but has no adequate estate planning documents, the Court will appoint a Guardian to exercise some or all of the Ward’s rights. Plenary Guardianship involves the removal of all of a Ward’s rights while a Ward who retains any rights has only a Limited Guardianship. As with all forms of Guardianship, the activities of both Plenary and Limited Guardian are subject to ongoing judicial supervision and annual reporting requirements.
• Emergency Temporary Guardianship - When circumstances require immediate intervention, an expedited form of guardianship based on an incapacity may be requested. If the Court can be convinced there is imminent risk of harm to the Ward’s health or finances an Emergency Temporary Guardian may be appointed to exercise some or all of a person’s delegable rights until the question of the person’s incapacity has been resolved. Emergency Temporary Guardianship may only last ninety (90) days.
• Guardian Advocacy – A person who has a developmental disability (Autism, Spina bifida, CP, Prader Willi Syndrome or any childhood diagnosis accompanied by diminished capacity, or any interested person concerned about their well-being, may request the appointment of a Guardian Advocate. Guardian Advocacy is quite similar to Guardianship based on incapacity, but has abbreviated procedures which avoid both the need for examinations by a court appointed examining Committee and a formal Determination of Incapacity. Instead, the relevant rights of the person with a developmental disability are delegated based on a statement from the person’s Primary Care Physician. Guardian Advocacy affords more dignity to the person with the disability, is less expensive than other forms of Guardianship and is, by law, a less restrictive alternative than Guardianship based on incapacity.
• Guardianship of a Minor – Any person who is not yet age eighteen (18), or any interested person concerned about their well-being, may request the Court to appoint a Guardian over that minor. This usually results from the minor acquiring or inheriting property of significant value, the need to resolve a lawsuit or a desire to enter into a binding contract. No examinations are required as incapacity is due only to the person’s age and the Guardian is frequently one or both of the minor’s parents. The appointed Guardian is responsible for the exercise of the Ward’s delegable property rights until the Ward reaches 18 years of age and can legally manage their own finances.
NOTE: This form of Guardianship is not used to address concerns about the inadequate parenting.
How complicated is Guardianship?
The initial stages of a Guardianship usually require about four months to complete. That time frame and the complexity of the case vary based on several factors, including whether the case is:
Contested or Uncontested
Plenary or Limited
Requested on an emergency temporary basis or within the standard schedule. However, the resulting Guardianship lasts until the Ward’s death unless the Ward regains adequate capacity to resume control of their own rights. Guardians serve for the duration of the Guardianship or until the Guardian’s resignation, removal or death. Usually a Guardian’s ongoing responsibilities become routine and are quite manageable, but as a Ward encounters life’s complications, their Guardian’s role can become more complex.
Who usually is appointed to serve as Guardian?
The person appointed to exercise a Ward’s rights (referred to as the Guardian) is often the Ward’s spouse, an adult child or another close relative. Regardless of their relationship to the Ward, all proposed Guardians must pass a thorough background check. When necessary, the Court may appoint a professional guardian who serves for an hourly fee.
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