The Basics of Adult Guardianship
When the health of a person you love or care for takes a turn for the worse or they otherwise become incapacitated, it is time to determine whether an adult guardianship is appropriate. Guardianship allows a person or people to make decisions for the incapacitated person, and is a serious process that should be handled with care. Below are the basics of adult guardianship.
What Is Adult Guardianship?People—especially the elderly—can have mental and/or physical disabilities that impose significant limitations on their ability to take care of themselves, express themselves verbally, earn a living, oversee their finances, etc. Adult guardianship is a legal proceeding where the court appoints a guardian to exercise the legal rights for an incapacitated person. The guardian can make decisions about the individual’s personal, financial, and/or medical care.
The courts consider several factors in determining whether an individual is incapacitated and requires a guardian. If the individual is able to express him or herself, the judge will typically want to talk to the person to find out if they need or want a guardian, and if so, who they would like that person to be. Typically, the judge will also take into consideration medical documentation and reports from family members in determining the person’s capacity, and, if appropriate, who the guardian should be. In some circumstances, the judge may appoint a lawyer to represent the individual in court proceedings.
What Are the Alternatives?The process of appointing a guardian can be time-consuming and expensive. The best way to avoid having the court appoint a guardian is for the individual to have written directives prepared in advance of a health crisis or incapacitation. Going through the legal guardianship process is only required if the individual does not otherwise have advanced directives.
A power of attorney (POA) appoints someone to make decisions on behalf of the individual regarding their personal, health, and financial affairs. A durable POA allows a specific person or specific people with the authority to manage all affairs for a specified period of time and continues if the individual becomes incapacitated. The POA must specify that it is durable.
Another legal tool for an individual to express their wishes in the event they become incapacitated is a living will. A living will is a legal document written prior to the incapacitation and outlines how a person’s “end-of-life” decisions should be handled.
If the individual in question is not yet at the point where they are incapable of making their own decisions, it is possible to obtain these legal documents to prepare for a time in the future when they may become incapacitated. Preparing these documents well in advance of any incapacity is the easiest and fastest way to ensure the individual’s matters are handled in the way he or she deems appropriate.
How to Obtain A GuardianshipA petition for guardianship requires that the person requesting guardianship file certain legal documentation in court explaining why the guardianship is being sought. The court may not require these documents to be filed by an attorney; however, it is important to consult with a lawyer before proceeding with the process. Once a petition is filed, the court will appoint a guardian ad litem. The guardian ad litem is typically a third party that has no personal interest in the matter. The guardian ad litem acts in the best interest of the individual, and will provide the court with his or her opinion and recommendation as to what is best for the individual. Next, a hearing will be held and the person requesting guardianship will present evidence in support of the request. Subsequently, if appropriate, the person for whom guardianship is requested will also present evidence. The judge (or jury) will then make a decision as to whether a guardianship is warranted. Guardianship can also be granted by the court in certain emergency situations without having to go through the full legal proceedings.
If you or someone you know requires a guardian, you can find an experienced elder law lawyer to help you by quickly posting a short summary of your legal needs on Legal Services Link and letting the perfect lawyer come to you!
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