If you need an attorney to help establish a guardianship for a parent, elderly relative or minor child, Nicolosi & Associates can help. We provide the advice and counsel you need to provide unconditional care to your loved one while avoiding disputes with other members of the family.
Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions due to a mental disability, the court will appoint a substitute decision maker, referred t as a “guardian.” Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who, because of incapacity, is no longer able to take care of his or her own affairs (the “ward”). The guardian is authorized to make legal, financial, and health care decisions on behalf of the ward. Depending on the terms of the guardianship, the guardian may or may not have to seek court approval for these decisions. Generally, a guardian has the authority to act without having to incur the expense of court approval.
Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In these cases, the court may give the guardian decision-making power over only those areas in which the incapacitated person is unable to make responsible decisions (a “limited guardianship”). In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian.
Generally a person is judged to be in need of guardianship when he or she shows a lack of capacity to make decisions on their own. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he or she spends money in ways that seem odd to someone else. In addition, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.
A party who is interested in the proposed ward’s well-being can file a request to obtain a guardianship over that ward. An attorney is usually retained to file this request for a hearing. This must be done in the probate court located in the proposed ward’s county of residence. The proposed ward is entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person cannot afford lawyer. The attorney appointed to represent a ward in a single action is known as a Guardian at Litem. During the initial guardianship hearing, the court, with the help and advice of a Guardian ad Litem, attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that a proposed ward is indeed incapacitated, it will then decide if the person seeking the role of guardian is an appropriate choice for the role.
A guardian can be any competent adult. Typically, this person will either be the ward’s spouse, family member, or friend. A professional guardian (an unrelated person who has received special training) may also be appointed if the court deems it necessary. In certain situations, a competent individual who holds a durable power of attorney over a ward may nominate a proposed guardian in the event a guardianship becomes necessary.
In naming someone to act as a guardian, courts will give substantial consideration to those who play a significant role in the ward’s life because these are generally people who are both aware of and sensitive to the ward’s needs and preferences. If two individuals wish to share guardianship duties, courts do have the power to name co-guardians. A guardian need not be an individual; it can be a non-profit agency or a public or private corporation. In the event a person is found to be incapacitated and a suitable guardian cannot be found, courts in many states will appoint a “public guardian,” a publicly financed agency that serves this purpose.
Courts will often give guardians broad authority to manage a ward’s affairs, including power to handle finances, medical, and legal decisions. Guardians are expected to act in the best interests of the ward, but given the often-broad authority of most guardians, there is the potential for abuse. For this reason, courts hold guardians accountable for their actions through mandatory court appearances and updates to ensure that they do not take advantage of or neglect the ward.
A guardian of property is responsible for inventorying the ward’s property, investing the ward’s funds so that they can be used for the ward’s support, and filing regular, detailed reports with the court. A guardian of property must also obtain court approval for certain financial transactions. This is why guardians must file an annual accounting to show how they have handled the ward’s finances. They must offer proof that they made adequate residential arrangements for the ward, provided sufficient health care and treatment services, and that they made educational and training programs available to the ward as needed. Guardians who cannot prove that they have adequately cared for the ward may be removed and replaced by another guardian.
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