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A guardian is  person who is appointed by the probate court to protect the property and/or person of one (the ward) who does not have the capacity to protect his or her own interests .  In most cases this is a relative. In the cases where there are no living relatives who are willing or able to take on the role of guardian, the court will assign a professional guardian or conservator.

TYPES OF GUARDIANS:

GUARDIAN AD LITEM: A disinterested person who is appointed by the court on behalf of the ward to represent the ward’s best interest.

GUARDIAN OF THE ESTATE:  A person or entity who is responsible for managing the financial affairs of the ward ,e.g., paying bills,collecting benefits, selling property.

GUARDIAN OF THE PERSON: A person who is responsible for and who advocates for the health and well-being of the ward.

GUARDIAN OF THE PERSON AND THE ESTATE: A person who acts in both capacities for a ward.

WHO NEEDS A GUARDIAN?

Guardianship is the OPTION OF LAST RESORT.  It is highly intrusive.  Each guardianship document is very specific about the rights that are granted to the guardian. The ward keeps all legal and civil rights guaranteed to all residents under the states’ and the United States’ Constitution, except those rights which the court specifically grants the guardian.

Just because someone has some disability does not automatically equate to the need for a guardian.  It may be possible to protect the ward with a properly worded and signed Durable Power of Attorney, a Living Will, a trust, case/care management services, or Representative Payee and Health Care Surrogate acts. Individuals may get additional information from the local bar association, and local social service agencies.

A common scenario for contested guardianship is when an adult child believes an elderly parent requires full time nursing care and the parent refuses to move to a nursing facility.  In many cases the parent may have Alzheimer’s disease or some other form of dementia.  The primary test is the ability to make decisions and to communicate the decisions once made.

1. Does the individual understand that a decision needs to be made?
2. Does the individual understand the options available in making a decision?
3. Does the individual understand the potential consequences of the decision and options?
4. Can the individual direct the decision to appropriate parties?

The areas of decision-making on which most guardianships are focused are as follows:

• Living conditions
• Medical care
• Vocational and educational services
• Ancillary professional services
• Caring for dependents
• Managing finances

STATE-SPECIFIC LAWS GOVERN GUARDIANSHIP

Each state has specific laws, which govern guardianship proceedings and the guardian’s activities. States also separate guardianship for minors and for adults with disabilities. Your local court will be able to direct you to the appropriate divisions for adult guardianship.

Each state has chosen to address specific issues by defining various types of guardianships.  Names or categories of guardians may differ greatly. The laws of the state in which the ward resides must be reviewed to learn the specifics governing the definition of an incapacitated person.

In most parts of the United States a person must demonstrate an inability to communicate responsible decisions concerning personal or financial matters.  The lack of capacity requires decisional impairment.

Some causes for lack of decisional capacity:

• Mental illness
• Developmental disability
• Physical incapacity
• Chronic intoxication
• Advanced age

State laws may also restrict the ward’s rights, such as the right to vote. The ward, however, has the right to the least restrictive guardianship suitable to his needs and conditions.