Guardianship is a legal mechanism whereby a suitable person makes important decisions for an incompetent or disabled adult when they cannot make decisions.
Appointing a Guardian
In some states, guardians are "conservators," while in other states, the appointment of a guardian refers to taking care of the person, and the appointment of a conservator is to manage finances. Other states, however, call both types of people guardians.
In some states, one person can serve as both the guardian of the person and the guardian of the estate. In some cases, a court would rather have two people performing these duties, as they involve different skills.
If you think your elderly friend or relative needs a guardian, you'll want someone good with finances to do those duties. For the guardian of the person, you'll want someone good at making decisions in the elderly ward's best interest.
What are the Qualifications of a Legal Guardian?
To be a legal guardian, most states require that the guardian is over 18 and is a close friend or relative of the ward. A legal guardian cannot be incapacitated or incapable of handling guardianship duties.
Additionally, most states require that the prospective guardian doesn't have a criminal record.
Because of elder abuse, courts want to ensure that the legal guardian is not someone who wants to raid the ward's money and personal property.
This situation is on the rise. Sometimes the ward's adult children have become guardians to gain access to their parent's money, which is illegal in most states.
The guardian of the estate must act in the ward's best interest, just like the guardian of the person.
How to Become a Legal Guardian
To become a legal guardian, you must file a petition in probate or surrogates court in the county where the ward lives.
Guardianship is a legal proceeding where a judge listens to evidence about the ward, the potential guardian, decides whether the ward needs guardianship, and whether the applicant for guardianship is suitable.
The steps to becoming a legal guardian for adults include:
- Filing a petition stating why the potential ward needs guardianship
- Including reports or letters from a doctor and psychiatrist that indicate the ward is incapable of handling their own affairs, that they cannot make necessary decisions for their own care, or forgetful, have dementia, or have physical or mental limitations.
- Hiring a lawyer, if you're the petitioner, who drafts the petition and explains why guardianship, which is the most restrictive form of care, is preferable to power of attorney or an advanced healthcare directive
- The court may appoint a guardian ad litem or attorney to represent the ward unless the ward has its own attorney.
- Serving pertinent people with the petition, such as the ward and close relatives
- Requesting a hearing by the court
- Having the hearing, presenting evidence as to why the ward needs guardianship, and why having a power of attorney isn't enough to protect the ward or society from harm
- The judge decides the case based on the evidence.
- If someone wants to object, they can file their own petition or objections to guardianship.
What are the Rights of a Ward?
If the ward doesn't believe they need a guardian, or if they want a different guardian, the ward can file objections to the petition and state their position opposing either the guardianship or the person applying for guardianship.
If the ward can show the court they're not incapacitated, or that the guardian wants to control them, the court will scrutinize the legal guardianship petition.
Even with a guardian, the ward can vote and participate in day-to-day activities if the activities aren't dangerous. However, sometimes a healthcare worker, the guardian appointed, may supervise the ward. The ward is usually not restricted to their apartment and can go out, get a job if they're able, and live their life without constant interference. The guardian will step in when the ward proposes to do something that's either dangerous or that the ward is incapable of doing.
What a Legal Guardian Can Do
A legal guardian can decide or do the following unless limited by the court:
- What healthcare the ward needs, unless someone else has a healthcare proxy
- Make appointments for the ward.
- Hire in-home workers for cooking, cleaning, or for taking the ward to appointments
- Hire other people to further the ward's best interest
- What the ward needs to stay in their home, such as what's needed for daily living
- Where the ward will live
A court can limit these powers, such as require a guardian to obtain court approval before deciding that the ward needs a nursing home or assisted living.
If you want to become a guardian, consult a family attorney who handles guardianship cases.