Guardianship – Part One
Tuesday, 3 January 2017
by Erin McAllister, Paralegal
The types of decisions a guardian can make on behalf of someone (normally called the “ward”) can vary from simply arranging life necessities, like food and clothing, to making big medical and financial decisions. Therefore, the selection of a guardian is a serious decision. A guardian can be appointed by the ward, perhaps in a will or power of attorney, or by someone like a parent, spouse, or other relative with close ties to the ward. In special cases, a state employee familiar with the ward and his or her incapacity will be chosen by the court as a legal guardian.
Like many legal procedures, establishing a legal guardianship is a complicated and regulated process. Once you have decided who will be the guardian, you will need to gather certain documents and file multiple forms with the court. Beyond the legal forms, such as a power of attorney, living will, and guardianship papers, it’s a good idea to have any financial documents like bank and investment statements and titles to personal and real property.
State guardianship laws can vary, and the paperwork and process may be different depending on where you live. In cases where a person has pre-selected a guardian through a living will or durable power of attorney, those wishes will normally be honored. Courts are tasked with establishing guardianships, and they typically appoint guardians in instances of incapacity or disability. Suppose, for example, that a person ends up in a coma after a car accident. Unless that person has a durable power of attorney and a medical directive already in place before the accident, the court will appoint a guardian to make both financial and non-financial decisions for the comatose person.
This is important because investments, real estate, etc. can lose their value over time if left unmanaged. There are also bills to pay. A guardian should make sure that excessive liabilities do not accrue during the period of incapacity.
Guardianships for physically or mentally disabled or incapacitated persons have, in recent decades, been understood to facilitate the independence and self-reliance of the ward. Guardianships are limited to allow wards to exercise as much control over their lives as possible while maintaining the most dignity and self-reliance possible. The desires of the ward are given primary consideration. Also, wards are allowed to do as much of their own caregiving as is physically and mentally possible. Guardians are granted those powers necessary to accomplish for the ward what the ward cannot accomplish independently. These powers may include:
• Assuring the availability and maintenance of care for the ward.
• Making financial decisions for the ward.
• Making medical decisions for the ward.
• Making sure that educational and medical services are maintained and adequate.
• Submitting updates to the court of the ward's condition. These court updates describe the ward's living situation, status of mental and physical health based upon medical examinations and official records, provide a list of services being received by the ward, describe services rendered by the guardian, account for the ward's monetary assets, and any other information necessary to submit to the court in order for it to assess the status of the ward and the guardian's duties.
Guardians aren’t expected to micromanage a ward’s life, since they’re not providing caretaking services. Guardians step in when necessary to make decisions and give consent to things that the wards don’t have the capability of on their own. This is the limit of their duties.
How is a guardian chosen? A guardian has to be qualified to serve. State qualifications differ, but in general, to be qualified, a guardian must be a legal adult (18 years of age) and cannot have a felony or gross misdemeanor record implicating dishonesty (forgery, bribery, etc.). The guardian must themselves not be incapacitated.
The court will choose based on the express wishes of the ward, if the ward is able to express his or her wishes. If the ward is not able to express his or her wishes, then the court will make a determination based on pre-incapacity documents such as a durable power of attorney or a will, and if there’s no durable power of attorney available, then the courts typically prefer to appoint a spouse, parents, adult children, brothers, sisters, or other family members.
Establishing a guardianship can be a complicated process with serious legal consequences. An experienced family or estate planning attorney can answer questions you may have and help you with both the guardianship decision and the official procedure.
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