When a loved one is no longer able to manage their financial or personal affairs, guardianship may be needed. The same is true if someone needs to have the authority to act for a minor or to manage the minor’s property.
The term “guardianship” refers to the court supervision of an incapacitated person. The court appoints a guardian legal authority to make personal and/or financial decisions for the incapacitated person.
The appointment of a guardian is a serious event. The “ward” is losing their legal authority to act for themselves. The process can be intrusive and costly. Given this reality, the courts go to great lengths to ensure that guardianship is needed and that the proposed guardian is qualified.
When is a Guardianship Needed?
Those suffering from mental capacity issues may qualify to have a guardian appointed.
Those with less permanent challenges usually will not. This includes those who have acute drug additions, alcoholics, or those with destructive financial habits.
Guardianship is not appropriate if there is a less intrusive alternative. These alternatives include the:
execution of a medical power of attorney,
appointment of an agent under a durable power of attorney,
execution of a declaration for mental health treatment,
appointment of a representative payee to manage public benefits,
establishment of a joint bank account,
creation of a Chapter 1301 management trust,
creation of a special needs trust,
designation of a guardian before a need arises, and
establishment of alternate forms of decision making based on person-centered planning.
The courts require clear and convincing evidence that these alternatives are not feasible before they will appoint a guardian.
Who Can Serve as Guardian?
The courts generally give preference to the following persons when deciding who can serve as the guardian:
the spouse of the incapacitated person,
the nearest of kin, considering the minor’s best interests, or
an eligible person who is best qualified to serve.
If the ward is a minor and is at least 12, the minor may select a guardian in writing, subject to the court’s finding that it is in the best interest of the minor.
The Guardianship Process
The process starts with the filing of an application, an assessment by third parties, and then a court hearing. Most courts require an application to be filed by a guardianship attorney.
The courts can also initiate guardianship if they receive information that the appointment of a guardian is needed for a person located in the county.
The guardianship can be temporary or permanent. The court can appoint the guardian powers to act for the ward’s property, the ward’s person, or both.
Once appointed, the guardian is supervised by the court. This supervision is carried out by requiring annual reporting, annual visits by a court visitor, and an annual review to determine whether guardianship should be continued.
Experienced Guardianship Attorneys
We help clients navigate this process. If you have questions about getting appointed as a guardian or abuses by a guardian, call us today to see how we can help.