Guardianship is a crucial legal tool that allows one person or entity to decide for an adult — the ward. A ward is a person who is incapacitated. They may not have the capacity to make their own decisions. This includes health care decisions or decisions about their financial affairs (conservatorship). Courts have to establish guardianships via court order. Courts typically appoint guardians if it is the less restrictive alternative.
For example, a person is in a coma due to a car accident. Without a durable power of attorney or a directive, the court will appoint a guardian to decide for the comatose person. This also includes financial and non-financial decisions through a conservatorship. This is important because investments like bank accounts and real estate need management. There are also bills to pay: A guardian manages the ward's financial affairs during the period of incapacity. The appointed guardian also makes medical care decisions and can deal directly with healthcare providers.
Why Would a Disabled Person Need a Guardian?
Poor mental health and physical disability can involve severe and long-term conditions. These can limit an individual's ability to take care of themselves. This includes mental illness and developmental disabilities. Some disabled persons may be unable to express themselves, earn a living, or live independently.
Incapacity reflects the necessity for a combination of treatments and services. There are several different types of guardianships. The appointment of a guardian is based on the circumstances of each guardianship case.
Guardianship for incapacitated persons is a measure meant to ensure the self-determination and well-being of the ward. A guardianship is reasonable to allow some wards to exercise control over their lives while maintaining dignity and self-reliance. Adult guardianships are for incapacitated adults. However, an incapacitated adult may require a conservatorship.
In a conservatorship, the conservator explicitly manages the ward's financial affairs. This includes an adult with special needs. The desires of the wards are given primary consideration, and wards are allowed to do as much of their own caregiving as is physically and mentally possible.
The fundamental legal rights of an incapacitated adult do not change when a guardian of the person is appointed. This is not limited to full guardianships. It also applies when a temporary guardianship, guardian ad litem, limited guardianship, or guardian of the estate is appointed.
What Powers Does a Guardian Have?
Guardians are granted only those powers necessary to accomplish what the disabled or incapacitated person cannot accomplish independently. These powers depend on what type of guardianship has been given. They may include:
- Assuring the well-being and maintenance of care for the ward
- Making financial decisions for the ward
- Making medical decisions for the ward
- Making sure that education and health care are adequately maintained
- Being the representative payee for monies owed to the ward
- Submitting updates to the court
In some guardianship cases, the legal guardian may provide supported decision-making. This means that the legal guardian helps the incapacitated person make decisions. These updates cover the ward's living situation and mental and physical health status. The updates are based on medical examinations and official records. They also provide a list of services the ward receives, including social security and legal services.
Guardianships of the person are helpful when the incapacitated person is in a nursing home. A guardian, in this instance, would help ensure the ward is not abused. Guardians aren't expected to micromanage a ward's life; they're not providing caretaking services. One way to think of it is as a provision of decision-making services. Guardians step in when necessary to make decisions and consent to things the incapacitated person cannot do on their own. That is the limit of their duties.
How Is a Guardian for a Disabled Person Chosen?
To be chosen, a guardian has to be qualified. Qualifications differ on a state-by-state basis. In general, a guardian must be a legal adult (18 years of age) and cannot have a felony or gross misdemeanor record implicating dishonesty (forgery, bribery, etc.). They must be willing to manage the incapacitated person's affairs and advocate for them. The guardian must themselves not have an incapacity, of course.
A probate court or family court will choose based on the expressed wishes of the ward. This is only in cases where the ward can express their wishes. If the ward cannot express their desires, the court will decide based on a few factors. These include the nomination of a proposed guardian by an adult, durable power of attorney, or a will. If there's no durable power of attorney, the courts prefer to appoint a spouse, parents, adult children, or another family member.
Make Your Wishes Known: Talk to a Family Law Attorney Today
If you're concerned about potential incapacity and having the court appoint a guardian for you, find a qualified family law attorney for legal advice. They can help you execute a durable power of attorney and a legal will.
Preparing for the guardianship process ahead of time will help your proposed guardian gain the power to take care of you if you become incapacitated. This may not include an unexpected or disqualifying circumstance. Find a local family law attorney today to help you through this legal process.