If a person becomes
incapacitated without having previously made a durable power of attorney, they
may need a guardian. Guardianship is a legal procedure by which a court
declares an adult incompetent and appoints someone to manage financial matters,
living arrangements and medical care decisions. When a court appoints a
guardian for an adult, that person loses the right to make some or all of their
own decisions for themselves. For this reason, there are many safety mechanisms
in place to insure that the alleged disabled person has an adequate opportunity
to contest the appointment of a guardian, if they so choose.
A respondent in a
guardianship proceeding must be served with summons, and the court will
typically appoint a Guardian ad Litem to conduct an interview; this is
carried out to determine if the respondent objects. A respondent has many
rights including the right to a trial by jury, a right to present evidence, and
the right to be represented by an attorney. The Guardian ad Litem
informs the respondent of those rights during the initial meeting.
Age or minor physical or
mental impairments do not necessarily mean that the adult requires a guardian.
Providing that they are still able to manage their personal and financial
affairs, the courts will not appoint a guardian for someone on the basis that
their family believes that they are making risky decisions. Courts will appoint
a guardian if the respondent has a physical or mental condition which impairs
his/her decision making capacity or ability to avoid harm.
Guardianship is ordinarily
not necessary for an incapacitated person who has appointed an agent under a
durable power of attorney. However, if an agent has not been appointed, friends
or family may start legal proceedings to obtain a guardian. Sometimes, the
County Public Guardian, or the Office of the State Guardian will petition for
guardianship, and/or serve as the guardian for incapacitated persons.
A court appointed guardian
frequently has complete authority over the person and estate of a disabled
adult, and will manage all financial matters, and make all personal decisions.
The court, however, supervises the guardian, and requires that they file an
annual report and accounting. All interested family members must be given
notice of accountings, and other major decisions, such as any request to sell
real estate belonging to the ward. At all times, a guardian must be bonded, and
may be discharged or removed if a court ever determines that the guardian is
not acting in the best interest of the ward.