Guardianship of Incapacitated or Disabled Persons

A guardianship is a crucial legal tool that allows one person or entity to make decisions for another — the ward. Courts are tasked with establishing guardianships, and they typically appoint guardians in instances of someone's incapacity or disability.

Suppose, for example, that a person is put into a coma as a result of a car accident. Unless that person has a durable power of attorney and medical directives already in place before the accident, the court will appoint a guardian to make both financial and non-financial decisions for the comatose person.

This is important because investments, real estate, etc. can lose their value over time if left unmanaged. There are also bills to pay — a guardian should make sure that excessive liabilities do not accrue during the period of incapacity.

Why Do You Need a Guardian for a Disabled Person?

Mental and physical disability or incapacity can involve severe and long-term conditions that impose great limitations on an individual's ability to take care of themselves, express themselves verbally, earn a living, and live independently. Such a disability reflects the necessity for a combination of treatments and services.

A guardianship for incapacitated — physically or mentally — persons has, in recent decades, been understood as a measure meant to facilitate the independence and well-being of the ward. As a result, guardianships are limited as much as reasonable to allow wards to exercise as much control over their lives as possible while maintaining dignity and self-reliance. 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 in their situation.

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 may include:

• Assuring the availability and maintenance of care for the ward
• Making financial decisions for the ward
• Making medical decisions for the ward
• Making sure that educational and medical services are maintained and adequate
• Submitting updates to the court of the ward's condition. (These court updates describe the ward's living situation, status of mental and physical health based upon medical examinations and official records, provide a list of services being received by the ward, describe services rendered by the guardian, account for the ward's monetary assets, and any other information necessary to submit to the court in order for it to assess the status of the ward and the guardian's duties.)

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 to give consent to things that the incapacitated person isn't capable of doing 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 to serve. Qualifications differ on a state-by-state basis, but 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.). The guardian must themselves not be incapacitated, of course.

The court will choose based on the express wishes of the ward, if the ward is able to express their wishes. If the ward is not able to express their wishes, then the court will make a determination based on pre-incapacity documents such as a nomination of guardian by an adult, durable power of attorney, or a will. If there's no durable power of attorney available, then the courts typically prefer to appoint a spouse, parents, adult children, brothers, sisters, or other family members.

Make Your Wishes Known: Talk to a Family Law Attorney Today

If you're concerned about potential disability or incapacity and having the court appoint a guardian for you — as opposed to selecting your own guardian candidate — then you should seek out a qualified family law attorney and execute a durable power of attorney and a duly probated will.

Preparing for a guardianship ahead of time will guarantee that the persons you select, outside of some unexpected or disqualifying circumstance, will have the power to take care of you in the event of some tragic accident or illness. Find a local family law attorney today.