The Guardianship Decision

One of the most important decisions your family can make is to appoint a guardian for your adult loved one with special needs. Guardianship is a valuable legal process which is used to protect adults who do not have the ability to make appropriate personal or financial decisions for themselves. The decision to appoint a guardian requires a great deal of thought and careful consideration and should not be made lightly, as the guardian will take on the very important role of caregiver for your loved one and/or their assets.

Following are some important points to know about guardianship:

DIFFERENT TYPES OF GUARDIANSHIP

• Guardianship of the Person: The guardian is limited to making decisions which affect the physicality of the individual, such as medical treatment decisions.
• Guardianship of the Estate: The guardian is responsible for managing the estate of the individual. When an individual has significant assets, inheritance or other monetary benefit, this type of guardianship is necessary.
• Guardianship of the Person and Estate.
• Limited Guardian of the Person, Estate or both: Used when the court determines that the individual is capable of rational decision-making.

REQUIREMENTS TO SERVE AS A GUARDIAN

Any person may serve as guardian who:

• Has attained the age of 18;
• Is a resident of the United States;
• Is mentally sound;
• Is not under a finding of disability; and
• Has not been convicted of a felony involving harm or threat to an elderly person or person with a disability, including a felony sexual offense. Under certain circumstances, the court may appoint an individual who has been convicted of a felony other than those noted above, as long as it is in the best interest of the individual and there is evidence of rehabilitation. In some cases, conviction for any felony may disqualify a potential guardian.

Entities may also serve as guardian, including:

• Any public agency or not-for-profit corporation capable of providing the care and/or support the individual requires.
• Any corporation qualified to accept and execute trusts may serve as guardian of the estate.

DETERMINING GUARDIANSHIP

The laws of each state dictate the process of obtaining guardianship.  Generally, the individual seeking guardianship must:

• File a petition for guardianship of the individual, naming either themselves or another qualified person or entity to act as guardian.
• Arrange for personal service of the petition, the rights of the individual, and a summons on the individual. Service is usually performed either by the sheriff of the county in which the petition is filed, or by private service (private service sometimes requires court approval) and must be completed within a certain number of days before the hearing date.
• Provide notice by mail to the individual’s nearest relatives.
• Obtain a medical report from a licensed physician detailing the reason guardianship is necessary.

A Guardian ad Litem may be appointed by the court in cases where the individual cannot, or will not, appear at court in person. The Guardian ad Litem performs an independent investigation of the facts in the case and reports to the court.  After the requirements listed above have been met, a hearing is held, the evidence is presented, and the court issues a ruling.

PROTECTION UNDER THE LAW

The law takes the revocation of an individual’s rights very seriously and provides the individual with specific legal rights. These rights include:

• The right to object to guardianship.
• The right to counsel, either chosen by the individual or appointed by the court.
• The right to a six-person jury.
• The right to present evidence, and confront and cross-examine witnesses.
• The right to a second, independent medical opinion.
• The right to a closed hearing.
• The right not to attend the hearing.

IF GUARDIANSHIP IS DETERMINED TO BE NECESSARY

When guardianship is ordered by the court, the guardian becomes an officer of the court and is subject to supervision by the court.

If guardianship is of the person only, the guardian is required to:

• Execute a no surety bond or an Oath of Office.
• Report annually on the mental and physical condition of the individual.

If guardianship includes the individual’s estate, the guardian is required to:

• Execute a surety bond in an amount determined by law.
• Present an initial inventory of the estate’s assets and an annual budget.
• Present the court with an annual accounting of the individual’s assets.

PAYING FOR GUARDIANSHIP

If guardianship is of the person only, and the individual has no assets, the petitioner is generally responsible for the cost. If an estate is involved, the cost of gaining and maintaining guardianship are the responsibility of the individual’s estate.

LIMITATIONS OF GUARDIANSHIP

Examples of the limitations of guardianship include, but are not limited to:

• Individual cannot be permanently placed in a care facility without court approval.
• Individual cannot be forcibly medicated, except by court order.
• Individual cannot be kept away from any person, except at their request, or by order of the court for the individual’s safety.
• Individual cannot be prevented from requesting a hearing to seek restoration of their rights.

It is important to note that guardianship is not necessary if an individual still maintains the ability to make rational decisions. Where appropriate, however, guardianship provides two important layers of protection, through the guardian and the court system, for those who have lost the ability to protect themselves.

It is also important to note that guardianship is the removal of an individual’s rights and should be considered only as a last resort and after careful consideration. The above information is general in nature.  If you require specific legal advice, you should consult with an attorney.

If you are considering guardianship for your loved one, we recommend you consult with an attorney who is familiar with guardianship proceedings. If you need assistance finding a guardianship attorney in your area, feel free to contact Protected Tomorrows at 847-522-8086 or info@protectedtomorrows.com.

Share