Guardianships

Guardianship may be necessary when a person of legal age lacks sufficient capacity to manage his or her own affairs, or to communicate important decisions concerning his or her person, family or property. The lack of capacity could be due to mental illness, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, dementia, disease, injury, or another cause. Sometimes a guardian is needed for an elderly person who loses his or her ability to manage his or her own affairs, a disabled child who is turning 18, or someone who has been severely incapacitated because of an accident and has not named a power of attorney. A person under a guardianship is referred to as a “Ward.”

A guardianship can be divided into two parts; guardianship of the person, and guardianship of the Estate. The Guardian of the Person has the authority to make decisions for the Ward as to the management of his or her everyday life; where the Ward lives, what activities he or she engages in; and medical treatment. The Guardian of the Estate has the authority to manage the Ward’s finances; making investments and authorizing expenditures. It is possible that a Ward may be found unable to manage his or her finances, but capable of managing the decisions of everyday life. The law also provides that a guardianship can be limited; the Ward may retain the right to make certain decisions, such as the right to choose his or her own residence, employment, and/or social contacts. The Ward may also retain his or her right to vote.

A Guardianship is established through a legal proceeding before the Clerk of Court. The individual who seeks the guardianship files a Petition and alleging that the person for whom the guardianship is sought is not competent, and must provide notice to all interested parties. The Clerk of Court will appoint a Guardian ad Litem to review the guardianship on behalf of the Ward and ensure that the Ward’s rights are not violated. A hearing will be held, and it is the Petitioner’s responsibility to provide evidence of incompetence as well as reasons the petitioner is the appropriate guardian. Such a hearing can be adversarial, and costly. However, there are many cases in which it is necessary to safeguard an elderly or disabled person.

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