Process for a Requesting Legal Guardianship

legal guardianship process

Many adults require care from another person towards the end of their life. If a person has not made legal arrangements in anticipation of legal incapacity or incompetence, there are options that friends, family, and other interested parties can consider to ensure that the person is properly cared for—the most common being a guardianship.

What is a Guardianship?

A guardianship, sometimes also called a conservatorship, is a legal relationship that gives a person, entity, or agency the authority to manage the legal and personal affairs of an incapacitated person. The basic requirements for establishing a guardianship include: (1) the person must be physically or mentally incapable of making important decisions for him or herself; and (2) the person must not already have legal documentation in place that control his or her personal and/or financial affairs in the event of such incapacity (such as a living will or a durable power of attorney).

What is the Role of the Guardian?

A guardian acts as an advocate and makes decisions on behalf of the legally incapacitated person, including where he or she lives and other major life decisions. The guardian’s role is to ensure that the incapacitated person lives in the most appropriate, least restrictive environment possible, with proper food, clothing, social opportunities, and medical care. Finances that belong to the incapacitated person remain the property of that person, and do not become property of the guardian. All funds used on behalf of the incapacitated person must be accounted for and kept separate from the guardian’s personal funds.

Setting up a Guardianship

Setting up a guardianship requires the filing of a petition with the probate court in the jurisdiction where the incapacitated person lives. Generally the petitioner is a relative, an administrator for a long-term care facility (such as a nursing home), or another interested party. The petition must explain and support the petitioner’s claim that the person is incapacitated and requires a guardian. This is generally done using information obtained from the incapacitated person’s attending physician and typically includes medical documentation in support. The petition must identify whether the person filing the petition wants to be the guardian or is seeking the appointment of a public guardian. The petition also must identify any known and living relatives of the incapacitated person, and allow them the opportunity to contest the petition. The incapacitated person can also contest the appointment of a guardian on his or her behalf.

Once all the appropriate paperwork is filed and processed, a hearing is held in probate court. If anyone contests the appointment of guardianship, they have the right to testify at the hearing. The judge then reviews the documentation and testimony provided, and determines if the evidence supports the appointment. If the evidentiary basis is deemed sufficient, a guardian is appointed. Once a guardian is appointed, the judge issues the guardian legal documentation, generally called "letters of authority," permitting the guardian to act on behalf of the legally incapacitated person.

Ending a Guardianship

The same court that created the guardianship can terminate it. A guardian’s role can be ended by the court or by the resignation of the guardian. If a guardian resigns, the court will appoint a successor guardian. A guardianship will also end upon the death of the legally incapacitated person.

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Posted - 02/29/2016