What is a Guardianship?

In short: The court-appointment of a person who is given the legal power to make personal and medical decisions for another person who is a minor or lacks the mental capacity to make such decisions for his/her self.  The appointee is known as a “guardian”; the court will not provide a guardian with power over finances or property.

A guardianship is a formal, court-supervised legal relationship.  Guardians are appointed by the court to handle the personal affairs of an “Incapacitated Person” (IP), in the case of an adult, or a “Ward, in the case of a minor. [2]  A guardian’s authority is limited to decisions regarding personal needs, residence, or medical treatment.  Further, a guardian is only permitted to make ordinary medical decisions; decisions that are extraordinary in nature, such as the administration of psychotropic medication, require specific court authorization. [3]

Any person interested in the welfare of an allegedly incapacitated person may petition for a determination of incapacity.  Grounds for a determination of incapacity exist where a person is mentally incompetent, mentally ill, mentally retarded or disabled, or a minor, or is suffering from severe dementia due to Alzheimer’s disease or another disease. [4]

Petition Process

Any person interested in the welfare of an allegedly incapacitated person may petition for a determination of incapacity in order to have a guardian appointed.  Any qualified person may be appointed a guardian; the courts will generally appoint those nominated in a durable power attorney as the guardian.  A parent or spouse may nominate a guardian by will.  If no durable power of attorney or will nominates a guardian the court will give preference to appointing a guardian in the following order:

1)   the spouse of the incapacitated person;

2)   a parent of the incapacitated person;

3)   any person the court deems appropriate.

In order for a guardian to be appointed a court must find that the alleged IP, for reasons other than advanced age or minority,

• “Has a clinically diagnosed condition

• That results in an inability to receive and evaluate information of make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care even with appropriate technological assistance

and

• The appointment is necessary or desirable as a means of providing continued care and supervision of the IP; and

• The person’s needs cannot be met by less restrictive means, including the use of appropriate technological assistance” [5]

Temporary Guardianship: In emergency circumstances a person can petition the court to appoint a temporary guardian.  Temporary guardianships, if approved by the court, generally last for 90 days and may be extended for good cause.  Petitioning for a temporary guardian to be appointed requires the petitioner set forth:

• The nature of the circumstances requiring the appointment;

• The particular harm sought to be avoided;

• The actions that need to be taken by the temporary guardian to avoid the harm [6]

Duties

Guardians must act in the best interest of the incapacitated person or ward.  The court will limit a guardian’s power to what is necessary under the circumstances.  Guardians for IPs must file a report with the court within 60 days of appointment, and annually thereafter.  The report must contain:

• The person’s current mental, physical, and social condition;

• The person’s living arrangements, including address;

• The medical, vocational, and other services being provided, including an opinion regarding the adequacy of care;

• A summary of the guardian’s visits and activities with the person, including the extent to which the person participated in decision making;

• If the person is institutionalized, the guardian’s opinion regarding whether the current treatment of habitation plan is in the person’s best interest;

• Plans for future care;

• A recommendation regarding the continuing need for a guardianship and any changes in the scope of the guardianship [7]

Rights of the IP/Protected Person

Any person petitioning for guardianship must provide notice to the IP/Ward and his/her heirs at law, domestic partner, and anyone who the IP/Ward has resided with during the 60-day period prior to the filing of the petition.

An IP/Ward or someone on their behalf may request counsel for the IP/Ward; the court will then appoint counsel for the IP/Ward.  Further, the court may make its own determination that the IP/Ward’s best interests would be protected by an attorney and may independently appoint counsel to represent the IP/Ward.  Counsel appointed to represent an IP/Ward are generally compensated through the respective IP/Ward’s estate; in some instances the court may make a determination that the petitioner must pay the appointed counsel’s fees.

Guardians can only be appointed for limited purposes and guardianships will be tailored to suit the specific needs of the incapacitated person.  As such, IPs are encouraged to retain as much autonomy as possible and guardians must make an effort to include the IP, to the extent possible, in decision-making.  The court will consider periodic reports on the status of the IP to further limit or expand the role of the guardian over time.

No guardian has the authority to admit an IP to a nursing home, mental health or mental retardation facility without authorization from the court [8]

Attorney’s Continuing Role

Obtaining your appointment as guardian does not end the attorney’s role.  As a fiduciary to the IP you are legally responsible for making complex personal and medical decisions for another person.

After appointment I will assist you in preparing a report required by the court within 60 days.  This report is fairly involved and will be used to define the scope and ongoing role of the guardian’s duty in relation to the IP.  Going forward I will assist you in preparing these reports annually, as required by the court.  These reports generally define the type of decision-making the guardian is authorized to engage in on behalf of the IP.

Because the laws governing guardianship favor a limited scope, I will assist you in properly defining the scope of your role both at the time of appointment and annually thereafter.  Complex or controversial decisions on behalf of the IP may require court approval.  The attorney will counsel you regarding the consequences of certain decisions and the necessary steps to be taken before carrying out those decisions.

The attorney’s ongoing relationship with guardians will mean some expense for the IP’s estate, but will provide you with certainty that the papers are correctly filed.  It will also allow you to focus your energies on your family, rather than on administrative matters.  At the close of the accounting year, I will contact you to remind you that the account is due.

Last updated by Debra Rahmin Silberstein on February 18, 2012.