Guardianship and Conservatorship Law

Guardianship of Incapacitated or Disabled Individuals

Key Takeaways

  • Guardianship provides a “guardian” with the legal rights to make most decisions for a “ward.”
  • Typically, it involves making medical and legal decisions, and some financial decisions.
  • When an adult has a mental impairment that makes it difficult, or impossible, for them to make sound medical and legal choices for themselves, they may require a guardian who can make those decisions for them.

When you have a loved one with a significant disability or an age-related cognitive mental decline, you do the best you can to help and take care of them. Sometimes, that may mean making decisions for them if they cannot do so for themselves.

But when it comes to certain legal and medical issues, you don’t have an automatic right to make those choices on someone else’s behalf unless they are your minor children. If you have a loved one in your life who needs help making medical or end-of-life plans, you may want to consider getting guardianship of them.

If you are considering guardianship for a loved one or family member or have questions about guardianship, contact a lawyer with experience in guardianship cases.

What Is Guardianship?

Guardianship gives a “guardian” the legal right to make most decisions for a “ward.” Typically, it involves making health care, legal, and minor financial decisions. It also requires making sure the personal needs of the ward are met.

In many states, major financial responsibilities are handled through conservatorship, though the guardian and the conservator can be the same person.

When an adult has a mental impairment or special needs that make it difficult, or impossible, for them to make sound medical and legal choices for themselves, they may require a guardian who can make those decisions for them. Everything that guardians do for their wards must be done in the ward’s best interest. Guardians could potentially face an audit from the court where they have to justify expenditures and decisions they’ve made for their ward, so it’s imperative to prioritize the ward’s well-being.

How Do You Get Guardianship Over an Incapacitated Person?

Guardians have to be appointed through the court and with a court order. When a person thinks they may need to become someone’s guardian – like an adult child with a developmental disability, a sibling who has recently been in a disabling accident, or a parent showing signs of cognitive decline – they need to petition the court for a guardianship hearing.

At the hearing for the appointment of a guardian, the potential guardian and potential ward will need to appear before a judge who will decide if the guardianship is necessary. If the ward cannot appear in court because of their condition, the hearing can occur without their presence.

The guardian must produce evidence of the ward’s incapacitation, such as letters from doctors, health care providers, social workers, and people who know the guardian and the ward. Medical records will be helpful as well. Anything that would prove the disabled person needs is incapable of making their own decisions and requires supported decision-making.

The judge will ask both parties questions to determine if the incapacitated adult is legally incapacitated enough to require adult guardianship if the ward is capable of answering the questions. The guardian will be required to answer questions and explain why they would be fit for the role they’re seeking.

In some cases, the ward may challenge the guardianship, which they are allowed to do. Guardianships don’t have to be permanent. In some cases, such as temporary incapacity, guardianships can be reversed or revoked through another petition and hearing in the court.

An adult who has been placed in a medically induced coma after a car accident, for example, may require a guardian to make their medical decisions only until the ward is conscious and well enough to make their own choices again.

How Do You Know if Your Loved One Needs a Guardian?

If you have a loved one who is fully incapacitated, the need for a guardian may be obvious. But what if the potential ward’s case isn’t as severe?

In some cases, guardianship may be suggested by a professional who knows the ward well, like a physician or counselor. In other cases, you may notice that your loved one needs extra help; if they often seem confused or unreasonably forgetful, it may be hard or impossible for them to make rational choices. They need to be able to understand complex decisions, the reasons for them, and their consequences. Mental health deterioration can also prompt temporary guardianship.

If you suspect an adult loved one might not be able to recognize their circumstances when making medical or legal decisions, you may want to consider stepping in. A lawyer with guardianship law experience will be able to answer questions about the types of guardianship: full guardianship, temporary guardianship, and the scope of the person’s guardian.

It’s a good idea for aging parents who still have the total cognitive capacity to talk with their adult children about their preferences for medical decisions and the end-of-life care they may need as they age. These conversations may be uncomfortable, but they will help the children fulfill their parents’ wishes if they ever become their parents’ guardians.

An attorney experienced in guardianship will be the best resource for legal advice and guidance. Guardianship law and guardianship cases can be complicated and full of emotions. A lawyer will support you through the legal process.

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