The information regarding guardianships is for educational purposes only. It is not intended to be legal advice. Please consult with a legal professional for specific legal guidance.
There may be a time in your life when you find yourself needing to take steps to care for a child with special needs or an elderly parent who is no longer able to make decisions or act on their own behalf. One solution in this situation is to file for guardianship.
What is a guardianship?
A guardian is a person appointed by the courts to manage the affairs of a person who is incapacitated. The law defines an incapacitated person as one who is at significant risk of harm because of a demonstrated inability to manage financial affairs, property, or adequately provide for their own nutrition, health, housing, or physical safety.
Because guardianship is a legal relationship, the court recognizes the guardian’s right to make decisions for the incapacitated person that are in his or her best interest. Generally, a guardian makes decisions related to the incapacitated person’s medical treatment, living situation, property, and/or income. By recognizing these rights as the guardian’s, the court takes them away from the incapacitated person.
Why do I need to file a guardianship?
It is assumed adults are competent to make decisions after age 18. Once a child turns 18, parents no longer have legal authority to make decisions for him or her unless there is a guardianship in place. Guardianship allows for decision-making concerning protection against financial exploitation, medical treatment and care, and protects the incapacitated person if they become involved in the legal system.
You can informally assess your loved one’s capacity to make decisions by considering the following:
- Can he or she understand the options available in making a decision?
- Can he or she understand the consequences of choosing one option or another?
- Can he or she identify the appropriate person to inform once a decision has been made?
Guardianships can be restrictive. When considering guardianship, look at other options available. Alternatives include conservatorships or a power of attorney. If a person is capable of making informed decisions, he or she can avoid a possible guardianship situation by establishing:
- A living trust: a trustee can manage it and no guardian is needed
- A durable health care power of attorney
- A durable power of attorney to designate someone to manage assets
Who may serve as a guardian?
Any interested person may petition the court to become a guardian. It is usually a parent, family member or other interested party. They must be over age 18, mentally stable and not have been convicted of any crime involving “moral turpitude”. Co-guardians may be appointed, and they could have equal decision making in all areas or divide the decision making authority. A standby guardian may be appointed to act on behalf of the guardian if he or she is unavailable.
What is the process to establish guardianship?
The process to obtain a guardianship involves filing papers with the court stating why the proposed guardian believes the guardianship is in the best interest of the incapacitated person. The court will appoint a guardian ad litem who will represent the incapacitated person throughout the legal process. These individuals are trained social workers or attorneys who act as the “eyes and ears” of the court. Once appointed, the guardian ad litem conducts an investigation which includes interviewing the incapacitated person, the proposed guardian(s), family members, medical providers, and other individuals who have a significant relationship with the incapacitated person. The guardian ad litem compiles all the information gathered and prepares a report to provide to the court.
When should I file?
There is no deadline for filing for a guardianship. In the case of a special needs child, a guardianship should be finalized shortly after he or she turns 18. In the case of an elderly parent or other incapacitated person, it should be as soon as possible once it has been determined he or she is unable to make sound decisions.
What happens at the hearing to appoint a guardian?
The guardianship hearing is a pretty simple process. The petitioner (guardian) must attend and if possible, the incapacitated person. The judge reviews the petition in advance and will ask the incapacitated person if he or she has anything to say or if he or she opposes the petition. No testimony is required, and the judge will sign the order.
What happens after the guardianship is established?
There a variety requirements a guardian must comply with after the guardianship is established. They must file a Personal Care Plan annually with the court to address issues with the incapacitated person’s residence, services and programs they participate in and any medical or health needs. Any changes in circumstance must be reported to the court within 30 days. In some situations, court approval is required, primarily those related to specific medical procedures, where a person lives or when the guardian and incapacitated person disagree.
If you have questions or want more information: