Guardianship of Incapacitated or Disabled Adults

Some adults 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 for several reasons. An appointed guardian for an incapacitated adult manages several aspects of the ward’s life, including:

• Bank accounts real estate
• Financial affairs and bill paying during the period of incapacity
• Medical care decisions and dealing directly with healthcare providers

When is Legal Guardianship of an Adult Necessary?

Adults can become incapacitated in several ways:

• A person born with intellectual or developmental disabilities transitions into adulthood
• A loved one loses their memory as they grow older
• An adult may have a severe mental illness
• Unexpected physical illness or disability 

In each instance, an incapacitated adult needs protection and assistance with making legal decisions on their own. Legal guardians appointed to care for an adult have strong decision-making powers.

They make decisions about the adult’s healthcare and medical treatment. They also determine the adult’s needs and well-being, including where they will reside. They can also manage the adult’s financial affairs (guardian of property) and may have the power to make decisions about estate planning.

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.

Types of Guardianships for Incapacitated Adults

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. 

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
• Ensuring that education and health care are adequately maintained
• Being the representative payee for monies owed to the ward
• Submitting updates to the court

These updates cover the ward’s living situation and mental and physical health status and are based on medical examinations and official records. The guardian must also provide a list of services the ward receives, including social security and legal services.

In some guardianship cases, the legal guardian may provide supported decision-making. This means that the legal guardian helps the incapacitated person make decisions.

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 experiencing abuse.

Guardians aren’t expected to micromanage a ward’s life—they’re not providing caretaking services. One way to think of it is as providing 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 Does the Court Choose a Guardian for a Disabled Person?

To be chosen, a guardian must 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.

A probate court or family court will choose a guardian based on the ward’s expressed wishes. 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.

Steps To Terminate Legal Guardianship for an Adult With Disabilities

Terminating guardianship for an incapacitated adult is a legal process that requires the court. This may occur if the ward’s physical or mental competency improves and they can manage their affairs independently. It can also occur due to guardian misconduct, such as failure to act in the ward’s best interests.

The specific process to end an adult guardianship depends on the state, but there are some general steps to expect:

1. Collect any supporting evidence or documentation that supports the request to terminate the guardianship. This can include medical information, financial records, and testimonies.
2. Request the termination of guardianship by filing a petition with the court where the guardianship was established. This petition should explain the reasons for the termination and include any supporting documents.
3. Notify all parties affected by the guardianship about the petition to terminate.
4. Attend a court hearing. The court will consider all evidence to decide whether termination is in the best interest of the ward.
5. After considering the information and supporting evidence, the court will issue a decision. If the court approves the termination, it will issue an order to end the guardianship.
6. If the guardianship is terminated, you must transfer responsibilities and rights back to the ward or to another appointed guardian.

You may want professional legal help when ending a guardianship. A family law attorney who understands your area’s laws and procedures can help you navigate this process.

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.