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© 2016 - U.S. Legal Forms, Inc USLegal Guide to Legal Guardianships INTRODUCTION A guardianship is a legal relationship created when a person or institution named in a will or assigned by the court to take care of minor children or incompetent adults. Sometimes called a conservatorship. A guardian is someone who is chosen, either by a court or by being named in a will, to make decisions for someone else when that person— generally referred to as the ward—cannot do the same for him or herself. These types of decisions include: giving consent to medical care or treatment; purchasing or arranging for purchase of such necessities as food, clothes, cars, household items, and other personal items; arranging for education; and managing finances and bank accounts. A guardianship requires that someone act on behalf of and protect the ward during the period of time when the ward is incapable of doing so. When asking the court appoints a guardian in a particular situation, the court must be sure that the potential ward is incapacitated and cannot make decisions for him or herself because of a mental or physical disability, disease, or addiction to alcohol or other drugs. The fact that potential wards are minors who lack someone to make certain decisions on their behalf until they reach the age of majority is also sufficient reason to ask the court to appoint a guardian. The selection of a guardian is an extremely important task. Certain people, with ties to the ward, are preferred by courts as possible guardians. These include the person designated by the ward, before the period of incapacity occurred, by legal document or otherwise to handle his or her affairs; the spouse; parents; or another relative; or a state employee or private person familiar with the ward and the incapacity at issue. Whoever is chosen by the court must be willing and able to perform the duties at hand and to represent the best interests of the ward. In selecting the guardian, the court considers the prospective guardian’s character, history, physical capacity, and other relevant attributes. A potential guardian’s limited education or financial resources are not disqualifying conditions in and of themselves. The guardianship statutes of each state detail the specific duties, responsibilities, and powers of the guardian. They should be examined in order to determine the regulations that apply to each situation. If an individual becomes unable to handle his or her own affairs there are two major areas of concern. These are the individual’s physical welfare decisions and the management of the individual’s finances. A guardianship is the appointment of an individual to provide care and to make personal decisions for a minor or incapacitated person. A guardian may be nominated by a Will, by a trust document, or by any via a petition with the court. The person for whom a guardian is appointed is called a ward. Generally, the ward cannot provide food, clothing, or shelter for himself or herself welfare without assistance. A conservatorship is typically the appointment of an individual or a corporation with trustee powers, to manage the financial affairs of a minor or other person who cannot manage his or her own financial matters. A conservator is typically not authorized to make decisions regarding the personal care as a guardian does. The person for whom a conservator is appointed is called a protected person. The court may appoint a conservator for a single transaction or indefinitely. A person may need a guardian or a conservator or both and the same person can be appointed in both capacities. TEMPORARY AND PLENARY G UARDIANS DEFINED Temporary guardianships are generally granted by the courts to achieve a specific purpose for a certain amount of time. Once the purpose is accomplished, the guardianship is terminated. A plenary guardian is a person appointed by the court with the power to exercise all legal rights and duties on behalf of a ward after the court makes a finding of incapacity. It is a guardian of both the person and the estate. G UARDIANSHIP OF A MINOR To become a guardian of a child either the party intending to be the guardian or another family member, a close friend or a local official responsible for a minor's welfare will petition the court to appoint the guardian. The guardianship of a minor remains under court supervision until the child reaches majority at 18. The judge does not have to honor the request when someone is named in a will as guardian of one's child in case of the death of the parent, it is construed as a preference, but is usually honored. The term "guardian" may also refer to someone who is appointed to care for and/or handle the affairs of a person who is incompetent or incapable of administering his/her affairs. Guardians must not benefit at the expense of those they care for (wards), and in many cases are required to make accountings to the court on a periodic basis. In some courts, a guardian may be reimbursed for attorney fees related to the guardianship. Court rules regarding accountings of expenses and requirements of guardians vary and local court rules should be consulted. In some states, if the child is a certain age or older, the court must appoint the person nominated by the child unless the court finds the nomination contrary to the child’s best interest. The court may not appoint a person against whom the child has filed a written objection. In adult guardianships, the judge is often required to make a reasonable effort to consider the preference of the person with a disability in selecting the guardian. The judge typically does not have to follow the person's wishes, but must give due consideration to the preference of the person with a disability. Laws vary by jurisdiction, so local laws should be consulted for specific requirements in your area. A guardianship of a child takes away the parents' right to make decisions about their child's life. However, it does not permanently terminate parental rights. This means that although the guardian now has custody and is responsible for raising the child, the parents are still the child's legal parents. The court can order a guardian to let the parents visit or contact the child, but the court may also put limits or other conditions on the visitation, such as requiring that any visitation be supervised. The time and frequency of parental visitation is often is up to the guardian (or the court) to decide. Parents may, in some cases, regain custody of their child in the future if the court determines the guardianship is no longer in their child's best interests.Local laws vary, but many courts require certain interested parties to be served with notice of guardianship hearings. Such notices often have to be legally served upon the person, with a sworn statement of the person making the service later returned to the court as proof of such service. In some cases, the court may waive the notice requirements. Local court rules should be consulted to determine applicability in your area. G UARDIANSHIPS FOR DISABLED PERSONS State statutes define mental and physical disability. However, generally, such disability or incapacity involves severe and long-term conditions that impose great limitations upon individuals' ability to take care of themselves, express themselves verbally, earn a living, and live independently of the care of others. Such a disability also reflects the necessity for a combination of treatments and services. 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. They are limited as much as is reasonable in order to allow wards to exercise as much control over their lives as possible while maintaining as much dignity and self-reliance as possible. The desires of the wards are given primary consideration. Also, wards are allowed to do as much of their own care giving as is physically and mentally possible. The guardian will be granted only 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 sure that educational and medical services are maintained and adequate, and 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. An incompetent adult or minor child may have the assistance of a court appointed guardian. An individual is determined incompetent if s/he is mentally impaired due to mental or physical illness or disability, mental retardation or chronic substance abuse to the point that s/he cannot take proper care of him/herself, his/her property or those for whom s/he is legally responsible. The court will determine an individual is incompetent and in need of a guardian of the person if the court finds that due to the impairment the person is unable to effectively receive and evaluate information or to make or communicate decisions to the extent that s/he is unable to prevent financial exploitation.The court may give the guardian authority to make personal decisions for the ward, including providing informed consent for health care and medication. This type of guardian is a “guardian of the person.” The court also can give the guardian authority to manage the ward’s money and property. This type of guardian is a “guardian of the estate.” A physical disability without an accompanying mental incapacity is insufficient to establish incompetence for the purposes of appointing a guardian. In this regard, the court’s focus is on the functioning of the person’s mind and not an impairment that affects control of bodily functions. The court must determine that the physical impairment causing the incapacity is accompanied by a developmental disability, a serious and persistent mental illness, a degenerative brain disorder such as dementia, or a traumatic brain injury. The disability or incapacity must involve severe and long term conditions that impose great limitations upon the individuals’ ability to take care of themselves, express themselves verbally, earn a living, and live independently. However, the evidence before the court must be clear and convincing that the person is incompetent. In their role guardians facilitate the independence and self- reliance of the ward. The guardian is granted only those powers necessary for the ward to accomplish what s/he cannot accomplish independently. The powers may include assuring the availability and maintenance of care for the ward and ensuring that educational and medical services are maintained and adequate. A guardian is required to submit updates to the court as to the status of the ward and the guardian’s duties J UDICIAL APPOINTMENT OF A GUARDIAN The Probate Court has the power to appoint any adult as a guardian to assume responsibility for the care and management of the person, the estate, or both, of an incompetent person. However, a minor over 14 or a minor’s parents by will may suggest a guardian for a minor. Moreover, a competent adult may nominate a guardian to serve in the event of incapacity. The application for guardianship is filed in the Probate Court of the county of the ward’s residency by an interested party, or on the court’s own motion. The application must include a statement of the guardian’s willingness to perform as guardian and a bond as required by law. In the case of a prospective incompetent ward the application must include a statement of the ward’s mental and physical condition from a treating physician, psychiatrist, or licensed psychologist. As prescribed by law, the prospective ward as well as the adult next of kin is to be notified of the impending guardianship and date and time of hearing. In the case of an incompetency proceeding, a court investigator will serve a notice and a statement of rights on the prospective ward. The court investigator then conducts an investigation which includes an interview with the prospective ward in order to assist the court in determining the advisability of guardianship. Thereafter, a formal hearing is conducted by the Judge or Magistrate to determine if a guardianship is necessary, the guardian is suitable, and the guardian understands these duties. The prospective ward has the right to be present at the hearing to contest any application for guardianship and to be represented by an attorney. Generally, the court will appoint a guardian after hearing evidence that a person is incapable of making decisions. D UTIES OF A GUARDIAN The court may authorize the guardian to exercise power over the ward if it finds by clear and convincing evidence that the ward lacks evaluative capacity to exercise power on his/her own. The court will only authorize the guardian to exercise power that is necessary to provide for the ward’s personal needs, safety, and rights and in a manner that is appropriate to the individual ward. In addition, a guardian must exercise powers in a manner that provides the least restrictive form of intervention. The powers that the court may transfer to the guardian of the person in full or in part include: