Guardianship

A guardian is a legal appointment given to an individual to be responsible for the food, health care, housing, and other necessities of an individual incapable of providing these necessities for themselves.

When is a Guardianship Required?

It may be necessary to petition a court to appoint a guardian for a person:

  • Who has a physical or mental problem that prevents them from taking care of their own basic needs:
  • Who as a result are in danger of substantial harm; and
  • Who have no person already legally authorized to assume responsibility for them.

Under some circumstances, it may be necessary for a court to appoint an emergency guardian, who can act during a crisis (such as immediately following a car accident) until you regain your ability to make your own decisions.

How is a Guardian Appointed?

The precise procedure will vary to some degree from jurisdiction to jurisdiction. The typical steps are as follows:

  • The person seeking the appointment of a guardian files a petition with the probate court for the jurisdiction where the allegedly legally incapacitated person resides. This petitioner is often a relative or other interested person. A petition is ordinarily accompanied by medical affidavits or other sworn statements which evidence the person's incapacity, and either identifies the person or persons who desire to be named guardian or requests the appointment of a professional guardian.
  • The court arranges for any necessary evaluation of the allegedly legally incapacitated person. Often, this will involve the appointment of a court visitor, a person who is appointed to provide an independent report to the court on behalf of the allegedly legally incapacitated person. If appointed, the court visitor will meet with the allegedly legally incapacitated person, inform them of their legal rights, and report back to the court on the person's wishes. The court visitor also speaks to the petitioner, to health care professionals, and to other interested parties in order to provide the court full information about the allegedly legally incapacitated person's condition and prognosis. Depending upon state law, the court may appoint a doctor or professional to examine the allegedly legally incapacitated person.
  • If the allegedly legally incapacitated person contests the appointment of a guardian, a trial is scheduled during which sworn testimony will be given and at the conclusion of which the judge will decide if the petitioner met the requisite burden of proof for the appointment of a guardian. The allegedly legally incapacitated person is ordinarily entitled to appointed counsel, if unable to afford a private attorney.
  • If the allegedly legally incapacitated person consents to the petition, or is unable to respond to inquires due to disability, the court will holes a hearing at which witnesses will provide sworn testimony to support the allegations in the petition. If the evidence is deemed sufficient, the guardian will be appointed.

What are a Guardian's Duties?

The guardian makes decisions about how the person lives, including their residence, health care, food, and social activity. The guardian is supposed to consider the wishes of the incapacitated person, as well as their previously established values, when making these living decisions. The guardian is intended to monitor the legally incapacitated person, to make sure that the person lives in the most appropriate, least restrictive environment possible, with appropriate food, clothing, social opportunities, and medical care.

The Purpose of Court Supervision

The court supervises the guardian's choices on behalf of the ward. After the initial appointment of a guardian, an initial review is usually scheduled, followed by annual reports by the guardian to the court. The purpose of this supervision is to ensure the legally incapacitated person is in fact benefiting from the most appropriate, least restrictive living environment possible, with appropriate food, clothing, social opportunities, and medical care.

How Can a Guardianship be Ended?

A guardianship can be terminated by the court which created it. This ordinarily happens if the legally incapacitated person recovers from the incapacity that necessitated the guardianship. A particular guardian's role may be terminated by the occur or by resignation, in which case the court will ordinarily appoint a successor guardian to take over management of the legally incapacitated person's affairs. A guardianship also ends upon the death of the legally incapacitated person.