Guardianship is when the court appoints someone to manage health and financial decisions for a person who lacks the capacity to do so and has been adjudicated incompetent (the ward). A guardianship can usually be avoided with early estate planning, but in cases where a family member has lost the ability to manage their own affairs and does not have a financial or a health care power of attorney, it can become necessary.
Guardianship, however, should be of the least restrictive means and seek to preserve for an incapacitated ward the opportunity to make those decisions and exercise those rights that are within the ward’s comprehension and judgment, allowing for the possibility of error to the same degree as is allowed to competent adults. Even when a guardian has been appointed for an incapacitated ward, the ward should be allowed to participate, to the maximum extent of his or her capabilities, in all decisions that will affect him or her.
Guardianship can also be necessary in situations where a minor Special Needs child is approaching 18 years of age, is unable to manage his/her affairs, and alternate means such as Supported Decision-Making is not appropriate.
A Guardian of the Person is appointed solely for the purpose of performing duties relating to the medical and physical care, custody, and control of an incapacitated person. The Guardian of the Person has no authority over financial or legal matters of the ward.
A Guardian of the Estate has all the financial powers and authorities of the person for whom he or she is guardian including the right to sue or defend a claim at law, the right to enforce and enter into contract, and the right to buy, sell or otherwise manage assets, all on behalf of the person of unsound mind. In many ways, a guardian of the estate functions as if he or she had an unlimited power of attorney from the unsound person.
The office or duty of one who legally has the care and management of the person and the estate of someone who the court has determined lacks the capacity to do so—essentially both Guardian of the Person and Guardian of the Estate.
The process of having a guardian appointed for a family member can be stressful and costly. Our firm works with the family to make this process as comfortable and easy as possible. The family member and the proposed guardian will have to make at least one appearance in front of the court clerk. If your family member is determined to need a guardian, the clerk will determine whether or not the guardian will need to look after all of the family member’s financial and health care decisions or whether they should retain the right to make some decisions for themselves. It is important to work with your attorney to get the best result for your family member.
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