A guardianship is a legal proceeding in which a guardian is appointed by the Court to exercise the legal rights of an incapacitated person.
- Decisions or duties that can be assigned to a guardian, include:
- Managing finances and other property
- Consent for medical or mental health treatment
- Finding a proper residence
- Enter into legal contracts
- Sue or defend lawsuits
- The kind of guardianship established is largely dependent upon the ward’s capacity level.
Types of Guardianship
- Limited Guardianship – certain rights of the incapacitated person (the Ward) are removed and delegated to the guardian. This is used when the Ward can make some but not all decisions necessary to care for his or her person or property.
- Plenary (Full) Guardianship – all rights of the Ward are removed and managed by the guardian. This is used when the ward is incapable of performing all of the tasks necessary to care for his or her person or property.
- Guardianship of person – the Guardian oversees the ward’s personal care, including medical and choice of residence.
- Guardianship of property – the Guardian manages the ward’s property, including income, assets, bills and finances.
- Guardian Advocacy – for developmentally disabled individuals who need assistance with the management of their affairs, but who do not require the removal of their rights.
- Voluntary Guardianship – certain rights are delegated to a guardian to assist with the management of property only. This type of guardianship is only available to a ward who is mentally capacitated but, due to age or physical infirmity, requires the assistance of a guardian.
- Minor Guardianship – although a minor’s parents are the natural guardians of their child and property, a guardian may be appointed in certain circumstances when the minor receives either an inheritance or receives an award for damages due to an injury. A guardian can also be appointed when either the minor’s father or mother are both deceased or are unable to care for the minor.
Guardians are accountable to the Court
Court Guardians have a fiduciary responsibility to protect the interests of the ward. Consequently, the guardian is held accountable to the local court. The guardian must prepare yearly reports that show accounting of financial activity and that report on the condition of the ward.
Disputes can arise that require guardianship litigation. Commonly contested matters in guardianships include the following:
- Who would best serve as the guardian?
- Is the Ward actually incapacitated?
- Are there less restrictive alternatives that can be used to avoid the need for a guardianship?
- Has the appointed guardian been negligent in his or her duties?