Guardianship is the appointment of one person, called the “Guardian”, to exercise the rights of another person who is incapacitated, called the “Ward”. The appointment is made by a Court, and can be for the rights related to personal care, called “Guardian of the Person”, rights related to finance and business rights, called “Guardian of the Property”, or all rights, called a “Plenary Guardian.”
There are several kinds of Incapacity. For instance, people under age eighteen lack legal capacity and need a Guardian to exercise their property rights if they acquire property of significant value, file a lawsuit or wish to enter into a binding contract.
A person may be born with a developmental disability: Autism, Spina bifida, CP, Prader Willi Syndrome or any childhood diagnosis accompanied by retardation resulting in a need for assistance in the exercise of some rights.
Persons of any age may suffer brain injury. - Trauma to the head, anoxia (lack of oxygen) or other medical complications sometimes result in injuries to the brain that can render a person Incapacitated.
Finally, there is the incapacity of dementia. Most often seen in the elderly, this is actually a broad category of disorders including Alzheimer’s, Lewy Body, Parkinson’s and Vascular Dementia, caused by a stroke or Transient Ischemic Attacks.
A judicial Determination of Incapacity removes some or all of a person’s rights and should be avoided whenever possible. If unavoidable, it must be coupled with the least restrictive alternative to guardianship possible or, if no such alternatives exist, with the least restrictive form of guardianship. When an allegation of Incapacity is filed in the Court, a committee of three examiners is appointed to evaluate the Ward. The examiners’ Reports and any other relevant evidence are presented to the Court and, if appropriate, an Order Determining Incapacity is entered which removes some or all of the Ward’s rights.
The appointment of a guardian is a last resort. If there are less restrictive ways to protect a person in need of assistance, those should be considered first. In fact, a Court will inquire about alternatives before appointing a Guardian.
It is important to see if a person has sufficient capacity to voluntarily appoint a trusted individual to serve as agent under a Durable Power of Attorney or Health Care Surrogate Designation, most times eliminating or postponing the need for a Guardian.
The initial stages of a Guardianship usually require four months to complete. That timeframe and the complexity of the case vary based on several factors, including whether the case is:
However, the resulting Guardianship lasts until the Ward’s death unless the Ward regains adequate capacity to resume control of their own rights. Guardians serve for the duration of the Guardianship or until the Guardian’s resignation, removal or death. Usually a Guardian’s ongoing responsibilities become routine and are quite manageable, but as a Ward encounters life’s complications their Guardian’s role can become more complex.
The person appointed to exercise a Ward’s rights (referred to as the “Guardian”) is often the Ward’s spouse, an adult child or another close relative. Regardless of their relationship to the Ward, all proposed Guardians must pass a thorough background check. When necessary, the Court may appoint a professional guardian who serves numerous Wards for an hourly fee.
Individuals and families in low income households are invited to visit the Statewide Public Guardianship Office.
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