The Legal Guardianship
By Aaron Larson
- Guardians and Conservators
- When Is A Guardianship Required for an Adult?
- How is a Guardian Appointed?
- What Are a Guardian's Duties?
- The Purpose of Court Supervision
- How Can a Guardianship Be Ended?
- What About Co-Guardians?
- Avoiding Guardianship
The traditional distinction between guardians and conservators is as follows:
Guardians - A guardianship is a legal right given to a person to be responsible for the food, health care, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for himself or herself.
Conservators - A conservatorship is a legal right given to a person to be responsible for the assets and finances of a person deemed fully or partially incapable of providing these necessities for himself or herself.
In some jurisdictions, a guardianship may be referred to as a "conservatorship of the person" or by some similar name, or there may be a type of guardianship position which subsumes many of the tasks of the conservator.
This article assumes a the traditional division between legal guardianship and conservatorship. For more information on conservatorship, please see this accompanying article.
Under most circumstances where a person requires a legal guardian, the person's incapacity will also impair his or her ability to manage financial matters. Thus, petitions for guardianship are often brought at the same time as petitions for conservatorship, and all associated proceedings are combined. To avoid having to go through
It may be necessary to petition a court to appoint a legal guardian for persons:
Who have 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 on your behalf during a crisis (such as immediately following a car accident) until you regain your ability to make your own decisions.
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, an administrator for a nursing home or health care facility, 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 public guardian.
The court arranges for any necessary evaluation of the allegedly legally incapacitated person. Often, this will involve the appointment of a "guardian ad litem", a person who is appointed to provide an independent report to the court on behalf of the allegedly legally incapacitated person. If appointed, the guardian ad litem will meet with the allegedly incapacitated person, inform that person of his or her legal rights, and report back to the court on the person's wishes. The guardian ad litem may also speak to the petitioner, to health care providers, and to other interested individuals in order to provide the court with full information about the allegedly incapacitated person's condition and prognosis. Depending upon state law, the court may appoint a doctor or professional to examine the allegedly incapacitated person.
If the allegedly 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 incapacitated person is ordinarily entitled to appointed counsel, if unable to afford a private attorney.
If the allegedly incapacitated person consents to the petition, or is unable to respond to inquiries due to disability, the court will hold a hearing at which witnesses will provide sworn testimony to support the allegations in the petition. If the evidentiary basis is deemed sufficient, the guardian will be appointed.
If a guardian is appointed, the judge will issue the guardian legal documents (often called "letters of authority") permitting the guardian to act on behalf of the legally incapacitated person.
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 valued, 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.
A guardian may be required to post a bond, unless the requirement is waived by the court. In most jurisdictions where bond is required, waivers are routine.
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 that 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.
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 court 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.
Sometimes, relatives of a legaly incapacitated person will request that they be made co-guardians for that person. If this is done, depending upon the laws of the jurisdiction and the terms of the appointment, it may be necessary for both co-guardians to approve any decision made on behalf of the legally incapacitated person. This can create needless delay in the administration of emergency care, and can create difficulty in establishing authority for even minor decisions. Thus, it is usually advisable not to have co-guardians, but instead to name a single guardian, perhaps with the other relative named as a successor guardian.
It is possible to avoid the necessity of a guardianship through estate planning. A good estate plan will include a medical power of attorney which will enable a trusted individual to make health care decisions for you in the event of incapacity, and a general durable power of attorney to permit a trusted individual to manage your personal affairs. To a considerable extent, those documents can specify how you wish to live, and how you wish to be treated, in the event of disability - whereas a court or guardian may make decisions with which you would disagree. In most cases, when these documents have been executed in accord with the laws of your state, it will not be necessary for your loved ones to seek the appointment of a guardian or conservator should something happen to you - something that can be cumbersome and emotionally taxing at an already difficult time.
Copyright © 2003-2011 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.