Adult Guardianship
What Is Adult Guardianship?
If someone can’t make important decisions for herself, a judge appoints someone—called the “guardian”—to make those decisions for her. Decisions made by the guardian have the legal backing of the court. The guardian might be appointed to decide about her finances, medical and personal care, or both.
Legal Help for Adult Guardianship
When someone you care for is in good health, you may not be thinking about her possible need for a conservatorship, or adult guardianship. But if you’re considering this step, you’re not alone.
The unfortunate truth is that many older adults have long periods toward the end of life when they’re not able to make decisions for themselves—due to Alzheimer’s or other forms of dementia, a stroke, an accident, Huntington’s disease, Parkinson’s, or some other serious medical condition.
If the person has an advance health care directive, the decision-making about her medical care, if she becomes incapacitated, may already be provided for. If she has a durable power of attorney for finances, there will be someone to take care of money matters.
But what if she only has one of these documents? Or neither? What if there are important decisions not covered in those documents?
That’s where adult guardianship might come in. It’s not simple to arrange, usually requires a lawyer, and needs a judge’s approval. But it might help solve the huge problem of who makes major decisions that involve her when she can’t do so herself and there aren’t enough other written directions.
What Are the Types of Adult Guardians?
Someone appointed to make decisions about someone’s medical care and other aspects of her personal life—for example, where she should live—is called a guardian of the person.
Someone appointed to decide about finances is called a guardian of the property.
If someone needs both, a court may appoint the same person to do both jobs.
What Is the Adult Guardianship Process?
After the petition for guardianship is filed, the court normally appoints an attorney for the person who cannot make decisions for herself. This person, by law, must act as an advocate for her and is not merely a dispassionate neutral party.
There is usually a deadline for all “interested persons” (often immediate family members) to voice any opposition by filing a response to the initial petition for guardianship.
If there is any opposition regarding whether a guardian should be appointed, who should be appointed, or what the duties or rights of a guardian are, the matter turns into a contested guardianship. If there is no opposition, the matter is an uncontested guardianship.
If no one contests the appointment, then the court will appoint the requested person(s). The person(s) appointed as guardian will need to attend guardianship training, as mandated by the court.
If a guardian of the property is appointed, the guardian files an inventory with the court. They are then required to submit a yearly report of assets belonging to the person who cannot make decisions for herself. If a guardian of the person is appointed, they submit a yearly report as well.
What Is Contested Adult Guardianship?
Typically, a contested guardianship centers around at least two individuals fighting over who should be appointed. In this case, each person who contests to be appointed is, by law, ranked for preference of appointment according to certain legal standards.
If two or more individuals have the same ranking, then the court will choose the best between them. If there is a higher-ranking petitioner, then the court shows preference to the higher-ranking individual unless the lower-ranking person can show just cause to overlook the other’s priority.
For example, if a brother and sister both wanted to serve as guardian for their mom, then (without any other factors) each enjoys the same ranking, and the court will pick between them to appoint a guardian.
However, in this example, if the mom appointed the brother as durable general power of attorney before she was disabled, then the brother has a higher ranking than his sister. However, if neither person is fit or preferable (in the eyes of the court), then the court may pick a third party to serve. This is an oversimplified example, but it gives a taste of the complexities of adult guardianship.
Schedule an Elder Law Consultation
There are a whole host of issues that can be decided by the guardian without court intervention, and there are a great number of decisions that must be approved by the court before action is taken. There are also circumstances when court authorization is not required but would certainly be warranted. We routinely provide advice to our guardianship clients regarding the guardianship rules and processes.
After our initial consultation, we will provide a roadmap outlining the pertinent issues in your case and how we are going to work to resolve those issues. You will know what to expect every step of the way.
Call us at 410-296-8166 x292.