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Family | Guardianship

Guardianship of an Incapacitated or Disabled Person

8 min read
Francesca Toledo, J.D.

by Francesca Toledo, J.D.

When a person becomes incapacitated or disabled, they may need assistance, as they’re unable to live life generally on their own. A person’s needs depend on the type of incapacity or disability and their unique situation.

A guardian for an incapacitated or disabled person has many rights and duties, including making critical decisions and managing their finances.

If you need legal assistance with the guardianship process, an unbundled lawyer can help you.

Incapacitation vs. Disability

An incapacitation can either be physical or mental. 

When a person is physically incapacitated, they are unable to take care of themselves physically and perform regular, everyday tasks. When a person is mentally incapacitated, they are usually unable to communicate or make decisions on their own.

Incapacity can be permanent, but in many cases it is temporary. For example, a person may be incapacitated if they are in a medically-induced coma, but once they’re out of the coma, they are no longer incapacitated.

A disability is a functional limitation in a person’s ordinary life and activities. Disabilities can be physical and mental.

Disability and incapacity are used interchangeably, and while they do have some similarities, they are fundamentally different.

For example, a person may have a disability but still be able to perform certain tasks. 

Disabilities can be temporary or permanent. Physical disabilities can be temporary or permanent, and mental disabilities are often permanent. 

Guardianship Explained

A guardian is a person appointed by the court to care for an individual, referred to as a ward. Usually, when a ward is incapacitated or disabled, they are unable to take care of themselves physically or make important decisions for themselves. That’s where a guardian steps in.

It is important to note guardianship that while guardians typically have the same rights and duties, it can mean different things, depending on your state. 

In some states, a guardian handles everything for the ward, including housing, care, and finances. In other states, guardians are only responsible for taking care of the ward themselves, while another individual handles the ward’s finances.

Conservatorship is often confused with guardianship, but conservators are only responsible for managing a ward’s money and assets. They do not make decisions regarding the ward’s life and circumstances. 

A guardianship attorney in your state can thoroughly explain the guardianship laws and give you a better idea of what you can expect when pursuing guardianship. 

Rights and Responsibilities of an Adult Guardian

When a guardian is appointed, from that moment forward they are responsible for the ward and making critical decisions impacting the ward’s life and well-being. 

Among the many responsibilities a guardian has, the following are some of the most essential:

  • Making decisions regarding the ward’s living situation
  • Ensuring the ward is receiving the proper care they need
  • Making medical decisions for the ward
  • Handling the ward’s finances and assets (unless there is a separate conservator)

While guardians themselves are not responsible for physically taking care of an incapacitated or disabled ward, they are managing the ward’s life. There are, however, certain limits to their rights and duties, as determined by the court.

In addition to these responsibilities, courts usually require guardians to submit updates to the court. Courts like to receive periodic status updates to make sure the ward is receiving the care they need and the guardian are fulfilling their duties. Some courts also assign independent investigators to interview guardians, wards, and caretakers to determine whether the guardianship situation is working well.

Choosing the Right Guardian

Choosing the right guardian is crucial to the success of guardianship.

First and foremost, to serve as a guardian, the proposed individual must meet certain requirements. Every state has its own requirements, but generally, the individual should satisfy the following criteria:

  • They must be at least 18 years of age
  • They cannot have a criminal record
  • They themselves cannot be physically or mentally incapacitated

Some states have additional requirements, like a proposed guardian cannot have filed for bankruptcy within the last seven years. A requirement like this can help ensure the court chooses a guardian that is financially responsible.

In many cases, the court will choose an individual that has an established relationship with the ward, like a family member or friend. Having a known and trusted individual serve as a guardian can help the ward feel more comfortable.

If a ward can express their wishes, the court can consider their desires. Should the ward not have the ability to communicate, but estate planning documents exist, such as a power of attorney, the court can base their determination on such documents.

In the end, if there is no indication of who a ward would want to serve as their guardian, the court can review information regarding the ward’s life, family, and situation to make the best possible decision.

Considerations to Make Before Becoming a Guardian

If you’re considering becoming a guardian, there are certain considerations every potential guardian should make before an appointment.

Becoming a guardian is a serious responsibility. You essentially have the life and future of another person in your hands. Therefore, it is not a duty to be taken lightly.

Before taking steps to become a guardian, you can try asking yourself the following questions:

  • Am I physically, mentally, and emotionally ready to take on such a responsibility?
  • Do I have the time and energy to dedicate to the ward and their needs?
  • Can I make a long-term commitment to guardianship?
  • Is there someone else who may be better suited for the role of guardian?
  • Can I commit to updating the court regularly regarding the ward’s status?

Being honest with yourself allows you to truly determine whether you’d be a good guardian for the ward. If you feel you can take on the time commitment and responsibility, and dedicate the energy to taking care of the ward’s needs, you’d likely be an excellent guardian.

How the Guardianship Process Works

If you wish to become a guardian, you must engage in the court process to receive a formal appointment. The exact procedure varies by state but generally includes the following details and steps.

Drafting and Filing Your Petition and Supporting Documents

First and foremost, you’ll need to draft your petition asking the court for a guardianship appointment. You’ll also need to provide supporting documentation, including evidence of the need for guardianship.

At the time of filing, you’ll also need to pay the court filing fee. Filing fees are often a few hundred dollars.

Serving the Other Party

Depending on the procedure of your state, you may need to notify the other party of the impending court process for guardianship.

Service of the process provides proper notice of the newly filed case to the ward and/or their family. If your state does not require you to serve the other party yourself, the court may appoint a third party to visit the ward so they may assess the ward’s situation and needs and give them notice then.

Attending the Guardianship Hearing in Court

A formal hearing in court is a necessary step in the guardianship process.

During the hearing, the judge has the opportunity to review the information and evidence provided and hear from the potential guardian as to the reasoning for the guardianship. 

If the ward is able, they may also attend.

Achieving Guardianship Appointment

Depending on how the hearing goes and what the judge believes is best for the proposed ward, they can either approve the petition for guardianship or deny it.

If the judge feels there is a need for guardianship and approves the request, the newly appointed guardian will receive proper court documentation solidifying the guardianship.

Ending or Terminating a Guardianship

Guardianship can end in several ways.

First and foremost, some incapacities can end. If the ward is no longer incapacitated, the guardian or ward can petition the court to terminate the guardianship, as it is no longer necessary.

If a judge determines the guardian is not successfully handling their duties and caring for the ward, they made decide it best to terminate the guardianship and appoint a new guardian.

Guardians themselves can also ask the court to relieve them of their duties if they feel they are no longer able to handle the responsibility.

Guardianship also automatically terminates when the ward passes away.

Not that a guardian’s responsibilities continue indefinitely unless the court steps in and terminates the guardianship. A guardian cannot take it upon themselves to abandon their duties without the court’s approval or termination of guardianship.

A Lawyer Can Guide You Through the Guardianship Process

Guardianship can be confusing, especially if you’re unfamiliar with the laws and procedures in your area.

A guardianship lawyer can take the time to get to know you and the situation to give you quality legal advice. If necessary, a guardian attorney can also:

  • Draft and file court documents
  • Obtain pertinent evidence to prove the need for guardianship
  • Represent you in court
  • Assist with court updates

If you’re interested in initiating a court case to seek a guardianship appointment, a guardian lawyer can provide guidance and support throughout the process.

An Unbundled Lawyer Can Help You With Your Guardianship Needs

An unbundled lawyer can ensure you get the legal assistance you need while helping keep costs at a minimum.

An unbundled guardianship lawyer has the same knowledge and education as a regular guardianship lawyer, but instead of taking on your case and handling it from start to finish, they only help you with what you need. Because you’re only paying for the services you receive, this significantly helps cut legal costs.

If you need guidance with your guardianship case, we can match you with an unbundled lawyer in your area.

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