Guardianship

 What is Guardianship?

Although more than often Guardianship is confused with Guardian Ad Litem, it is a different program.  Guardianship is the process of designating someone to exercise the legal rights of individuals who lack the ability to make their own decisions and / or handle their own affairs.

The Public Guardianship Office acts as guardian for individuals who have been deemed incapacitated by the courts and do not have a qualified family member or friend to act in this capacity.  The Public Guardianship Office provides these services to individuals who lack the financial resources to compensate a private guardian.

If an adult believes that another individual is lacking capacity to handle their own affairs due to a lack in mental or physical capacity, this individual with the assistance of an Attorney would file a petition of incapacity with the probate office at the courthouse.  This petition simply states that they wish for the alleged incapacitated person be evaluated for capacity.

Once the petition is received, the court will appoint three Examining Committee Members to evaluate the alleged incapacitated person.  These Examining Committee Members arrange to meet with the alleged incapacitated person individually to perform their evaluation.  Upon the completion of their evaluation, they submit their report to the court.  At the end of their report, they will make a recommendation stating that either the alleged incapacitated person is in need of a Plenary Guardian, a Limited Guardian or they do not lack capacity and are not in need of a guardian.  The court also appoints an attorney to represent the interests of the alleged incapacitated person.  A hearing will then be set.

At the hearing, the Judge will make the final determination as to whether the person is deemed incapacitated and whether or not to appoint a Guardian.

Advance directives may help avoid the possibility of guardianship.  While capacitated, every adult regardless of their age should consider executing a Living Will, Durable Power of Attorney and a Health Care Surrogate.  This way, they themselves can decide who they would trust to handle their financial affairs and make their medical decisions should they become incapacitated and unable to do so for themselves.

•Living Will:  A Living Will is a legal document that allows a person to make their wishes known regarding life prolonging medical treatments and end of life wishes.

•Health Care Surrogate:  An adult designated by you to make medical decisions on your behalf if you are in a situation where you are unable to make them for yourself.  You should make sure to discuss your wishes with this person so that they could make those decisions you would have wanted to make for yourself.

•Durable Power of Attorney:  A legal document in which you designate a trusted adult legal authority to act on your behalf and make financial decisions.  This document could also designate a Health Care Surrogate.  The Durable Power of Attorney could be limited or as broad as you like.  Unlike a Power of Attorney, a Durable Power of Attorney remains in effect even after you have been deemed incapacitated.

•Plenary Guardianship:  The guardian is appointed to exercise all of the rights and powers of the Ward.

•Limited Guardianship:  The guardian is appointed to exercise certain rights and powers on behalf of the Ward.  The Ward retains some rights.

•The alleged incapacitated person does not have any family members or friends either willing or qualified to act as guardian