When a person is legally incapacitated for reasons such as age, illness, infirmity, it may become necessary for a court to appoint somebody to assist the person with their personal and financial affairs.

Persons appointed by a court to provide the necessary assistance have been traditionally classified as guardians and conservators:

• What is a Guardian: A guardian is appointed by a court to assist with decisions relating to an incapacitated person's personal affairs, such as their medical care, where they live, and their other necessities of life.
• What is a Conservator: A conservator is appointed by a court to assist with an incapacitated person's financial affairs, including management of their assets and payment of their bills.

A person under a guardianship is often referred to as a ward of the guardian.

The terminology used to describe guardians and conservators may differ based upon your jurisdiction. For example, a guardian may be referred to as a conservator of the person, and a conservator may be referred to as a guardian of the estate. This article uses the traditional definition of guardian, and addresses the appointment of a person to assist with an incapacitated person's personal needs.

When is a Guardian Appointed

A guardianship may be granted when a court finds that an allegedly incapacitated person is fully or partially unable to provide for his or her necessities of life.

Incapacity may result from such factors as mental illness or impairment, physical illness, substance abuse, or a similar issue that renders the person unable to properly manage his or her own personal affairs. Guardians may also be appointed for the benefit of minors whose parents have passed away or are otherwise unable to provide care.

When Is A Guardian Required for an Adult

It may be necessary to for a court to appoint a legal guardian for adults:

• Who have a physical or mental illness or disability that prevents them from taking care of their own basic needs;
• Who as a result of their incapacity are in danger of substantial harm; and
• Who have no person who is already legally authorized to assume responsibility for their personal affairs.

As it is important that a person receive medical care, shelter and other necessities of life, guardianship proceedings tend to proceed through the courts relatively quickly. At times it is necessary for a court to appoint an emergency guardian who can act on behalf of an incapacitated person before a full hearing can be held, such as following a sudden, severe health crisis or car accident.

When Is A Guardian Required for a Minor

Minors are normally cared for by their parents, who are their natural guardians. Parents may normally make all important life decisions for their minor children. Sometimes it is necessary for a court to appoint somebody other than a parent to assume the role of guardian,

for example:

• A minor's parents may be deceased;
• A minor's parents may be unable to care for the child for reasons such as physical or mental illness, or incarceration;
• A minor may be placed by a parent with another caregiver who needs legal authority over the child for such purposes as arranging medical care or enrolling the child in school.

Parents may be able to choose a guardian for their child or, through a will or other legal document, designate a standby guardian to care for their child in the event of their death.

If the parent is not able or competent to designate a guardian, or the circumstances otherwise warrant, a child's guardian may be selected by the court. Minors above a specific age, such as the age of fourteen, are often permitted by state law to choose their own guardian subject to court approval.

Simultaneous Appointment of a Conservator

Most people who require the appointment of a guardian will also require the appointment of a conservator to manage their financial affairs. Petitions for guardianship and conservatorship are often filed at the same time, so that they can be handled through combined court proceedings.

How is a Guardian Appointed?

The precise procedure for the appointment of a guardian will vary to some degree from state to state. A typical process is as follows:

1. Petition For Guardianship: The person or institution seeking the appointment of a guardian files a petition with the probate court for the jurisdiction where the allegedly legally incapacitated person resides. The petitioner is often a relative of the allegedly incapacitated person, or the administrator of a nursing home or health care facility. The petition is normally filed in the county probate court or surrogate's court.

   The petition may be filed as an emergency petition, asking that the court hold a hearing to appoint a temporary guardian before holding a full hearing on the petition. An emergency petition might be sought where the allegedly incapacitated person is considered to be a suicide risk or danger to others, or where a minor's parents are denying the child necessary medical care.

   A petition for a guardianship is normally accompanied by medical affidavits or other sworn statements that provide evidence the person's incapacity. The petition will either identify the person or persons who want to be named guardian or will request the appointment of a guardian selected by the court, or a public guardian.

2. Investigation of the Petition: Once the petition for a guardianship is filed, the court will arrange for any necessary evaluation of the allegedly legally incapacitated person, and attempt to determine the person's wishes. That process normally involves the appointment of a guardian ad litem, a person appointed to investigate the petition and provide an independent report to the court regarding whether or not a guardianship should be granted.

   Once appointed, a guardian ad litem will meet with the allegedly incapacitated person. The guardian ad litem will inform the person of his or her legal rights, ask questions in order to assess the person's capacity and, if possible, to learn the person's wishes in relation to whether a guardian should be appointed and who the person would prefer to serve as guardian. The guardian ad litem may also speak with the allegedly incapacitated person's caregivers, medical care providers, and other persons with knowledge about the person's incapacitating condition and prognosis.

   Depending upon the laws of the state, the court may appoint a doctor or professional to examine an allegedly incapacitated person to independently assess the person's physical and mental capacity.

3. Court Proceedings: The court will schedule a hearing on the petition, at which time testimony and evidence will be submitted in support of the petition.

   • Consent: If the allegedly incapacitated person consents to the appointment of a guardian, the court will review the facts and reports in order to ensure that the legal requirements for appointment of a guardian have been met, and if so appoint a guardian.

   • Severe Incapacity: If the allegedly incapacitated person is unable to understand the proceedings or make an informed decision, the court will hold a hearing at which evidence and testimony is presented to support the petition for a guardian and, if the legal requirements are satisfied, appoint a guardian.

   • Contested Proceedings: If the allegedly incapacitated person objects to the petition, the court will schedule a trial at which evidence and testimony will be presented on the issue of whether the petition should be granted, with the petitioner bearing the burden of proof. The allegedly incapacitated person is entitled to be represented by a lawyer at the hearing and, if unable to afford a lawyer, may receive court-appointed representation.

4. Appointment of a Guardian:  If a guardian is appointed, the judge will issue to the guardian legal documents that permit the guardian to act on behalf of the ward. These documents are often called letters of authority.

Appointment of Co-Guardians

At times, the relatives of a legally incapacitated adult will file a joint petition, asking that the court appoint them to be co-guardians for the person.

If the court permits the appointment of co-guardians, depending upon the laws of the state in which the appointment is made:

• It may be necessary for both co-guardians to approve any decision made on behalf of the ward.
• When joint approval is required, the appointment of co-guardians may cause significant delays in the making of decisions, including the approval of emergency medical care.
• If co-guardians do not agree, even the making of minor decisions can become unnecessarily complicated.

It is thus normally advisable for a single person to be appointed as the guardian of a disabled adult, perhaps with the other interested relative named as a successor guardian.

What Are a Guardian's Duties?

A guardian is authorized to make or assist with decisions for an incapacitated person for matters including:

• Their place of residence;
• Their health care;
• Their social activity; and
• Their other basic needs;

To the extent that an incapacitated person is capable of making or participating in informed decisions, the guardian is expected to consider their wishes when making decisions, as well as the values that the person established before the appointment of a guardian became necessary. A court may limit a guardian's powers based upon its determination that the incapacitated person is capable of making some decisions without assistance.

The guardian is expected to monitor the legally incapacitated person, and to ensure that the person lives in the most appropriate and least restrictive environment possible, with appropriate food, clothing, and medical care and social opportunities.

The guardian will be required to file written reports with the court, usually on an annual basis.

Depending upon state law and the guardian's duties, a guardian may be required to post a bond with the court. In most jurisdictions where bond is required, waivers of the bond requirement are routinely granted.

Court Supervision of Guardians

Once a court appoints a guardian, the court provides some oversight of the decision that the guardian makes on behalf of the ward.

• After the initial appointment of a guardian, the court normally schedules a review hearing.
• Following that initial review, the guardian is required to file an annual report with the court, or to report more frequently as ordered by the court.

The purpose of the court's oversight is to ensure that the incapacitated person is being properly cared for, and is benefiting from the most appropriate and least restrictive living arrangement that is possible under the circumstances, and that their personal needs are being met.

How Can a Guardianship Be Ended?

A guardianship may be ended by the court that appointed the guardian.

For the guardianship of a minor, guardianship normally ends when the minor's parents regain custody, or when the minor reaches the age of eighteen. If the minor remains incapacitated for a reason other than age, the court may entertain a petition to continue the guardianship past the age of majority.

Guardianship of an adult may be terminated based upon the adult's recovery from the incapacity that necessitated the appointment of a guardian. Guardianship also ends upon the death of the incapacitated person.

Replacement of a Guardian

The appointment of a specific guardian may be ended, even if the need for a guardianship continues, based upon factors such as:

• The Ward's Request: The ward may petition the court for a different guardian, in which case the court will review the petition and relevant facts to determine if a different guardian should be appointed.
• Neglect of Duties: The court may find that the guardian is not properly attending to the ward's needs, or has failed to fulfill his or her duties to the court.
• Petition by a Third Party: A person who has a sufficient legal relationship to the ward may petition the court to replace the guardian.
• Resignation: The guardian may resign, necessitating the appointment of a successor.

When a guardian is removed but the need for the guardianship continues, the court will appoint a successor guardian.

Avoiding Guardianship

You can normally avoid the need for the appointment of a guardian through estate planning. A good estate plan will include both a durable power of attorney, authorizing a designated person to manage your finances and personal affairs in the event that you become disabled, and a healthcare proxy, a medical power of attorney that authorizes a designated person to make medical decisions on your behalf that are consistent with your wishes.

By executing powers of attorney you may not only designate the people who you prefer to make decisions on your behalf, you can limit their authority in ways that are consistent with your preferences. Should something happen to you, you may also allow the members of your family to avoid the need to file court petitions and attend court hearings at what will already be an emotionally difficult time.