Guardianship

What is guardianship? Guardianship is a court proceeding that creates a legal relationship by giving one person (the guardian) the power to make personal and financial decisions for another (the ward). The court considers whether an alleged incapacitated person needs a guardian if evidence shows such person is unable to care for themself by reason of mental illness or physical incapacity.

What are the alternatives to guardianship? There are less restrictive alternatives to guardianship such as durable powers of attorney and representative payees. However, these documents need to be executed before the individual becomes incapacitated.

When is a guardianship appropriate? Guardianship is appropriate when impaired judgment or capacity poses a major threat to a person's welfare leaving him or her incapacitated. A medical evaluation by a licensed physician is necessary to establish the proposed ward's condition. However, only a court can determine the need for a guardian.

How can I become a guardian? A petition must be filed with the court requesting the appointment of a guardian. Unless dispensed with by the court, a bond must be filed with the court. The petitioner must provide notice to the ward and possibly others of the filing of the petition for guardianship. A guardian ad litem is appointed to conduct an unbiased assessment of the potential ward regarding the need for a guardian. The court sets a hearing date by which anyone wishing to object may do so, including the proposed ward. At the hearing, a judge decides whether a guardian should be appointed.

How long does this appointment last? A permanent appointment may last until the death of the ward, the ward is able to establish that he or she is competent, or the guardian resigns or is removed by the court.

What are the responsibilities of the guardian? A guardian represents and must act in the best interests of the ward. Guardians have fiduciary responsibilities of good faith and loyalty to the guardian. The guardian must account for all of the ward's income and any expenditure made on his or her behalf. This is accomplished by the guardian filing an inventory listing the ward's assets with the court as of the date of appointment and thereafter filing reports with the court. A final account must be filed when the guardianship is terminated. The guardian is liable for his or her acts until the court approves the final accounting.

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