A guardianship is a judicially created role where a person is appointed to be legally responsible for another adult in an official capacity. There are three different categories of general guardianships, which are:
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Guardian of a person
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Guardian of an estate
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Guardian of both a person and an estate
When Is a Guardianship Necessary?
A guardianship may be considered when an adult is unable to physically or mentally care for him or herself. This includes the person’s ability to maintain his or her health and physical well-being but also encompasses the ability to manage personal and legal affairs.
Isn’t a Power of Attorney Sufficient?
While a power of attorney is a valuable tool, it does not offer the same safeguards that a guardianship can. Many people mistakenly believe that a power of attorney operates to give them the same powers as a guardianship, but this is not the case. A guardianship grants more authoritative powers to the guardian (the caretaker) over the affairs of the ward (person being taken care of) both in terms of financial and healthcare decisions. It also provides a mechanism for Court supervised care and decision-making.
How Do Guardianship Proceedings Work?
The person seeking the guardianship begins by filing a petition with the court. The court then institutes an investigation by a court investigator (Ad Litem). The possible ward can also fight the attempt to establish a guardianship by objecting to the proceeding. In that instance, the court will appoint counsel to independently protect the interests of that person. Many factors are weighed by the court to decide whether the guardianship will be instituted. Ultimately, the matter is decided in a court hearing.
What Are the Responsibilities of a Guardian?
A guardian has many duties and is accountable to the court. A guardianship does not give free rein for a guardian to use the ward’s assets. For this reason, a guardian often has to post a bond with the court to ensure that he or she acts in a responsible and ethical manner in regard to the ward’s property. The guardian must also provide an accounting of the ward’s real and personal property and explain how it is being spent or disposed of. The court will also oversee how much the guardian is paid by the ward’s estate for his or her services in order to make sure this amount is reasonable.
How Long Does a Guardianship Last?
A guardianship will remain in place until the court orders otherwise. There are many scenarios in which a guardian may be relieved of his or her duties. These may include:
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The death of the ward.
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An exhaustion of the estate assets.
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A recovery by the ward of physical or mental capacity.
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An inability or unwillingness of the guardian to fulfill his or her duties. In this case, the court will appoint a new guardian.
Free, Confidential Legal Assessment
Considering a legal guardianship is often a very challenging decision. Many wonder whether it is the right decision for their family under the circumstances. In order to find out your rights and responsibilities before petitioning for a guardianship, you should speak to experienced guardianship attorneys who can help you navigate this challenging legal and personal situation.
