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Guardianship 1-2-3
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In the United States every person over the age of
18 is legally assumed to be a competent adult unless a Court finds
otherwise. If an adult has completed certain documents, such as a
Power of Attorney, it is possible for a friend or family member to
make medical decisions and manage the finances of someone who is
not able to do these things for himself without the need to
involve the Courts. However, if the adult who needs help has not
completed Power of Attorney or other estate planning documents it
may sometimes be necessary to take the unwelcome step of seeking
Guardianship.
If an adult is unable to make responsible decisions about his
medical, legal or financial affairs, a Court may appoint another
competent adult to manage the affairs of the "ward." The ward's
right to be responsible for his own affairs is removed by the
Court, and the Guardian becomes responsible. This puts the ward in
a position similar to that of a child, who is in the charge of his
or her parents for all important decisions.
The Court will not find a person to be incompetent simply because
he or she is making decisions that might seem foolish to others.
Spending money in ways that someone else might consider wasteful
is not necessarily a sign of incompetence. An inability to make
sound financial decisions and therefore jeopardizing the ability
to buy food or pay for electricity might be signs of incapacity.
Some people may be incompetent to manage certain things in their
lives, but not others. In these cases, the Court may appoint a
Guardian to manage those affairs that the ward cannot responsibly
manage, while the ward remains responsible for those things he or
she can still handle (a "partial guardianship").
In some states, the person responsible for overseeing a wards
medical care and living circumstances is called the "Guardian" or
"Guardian of the Person" while the person or entity responsible
for managing a ward's financial affairs is called either a
"Guardian of the Estate" or "Conservator." These may or may not be
the same person or entity.
Placing an adult into guardianship can take away the right to
decide where and how to live and what medical care is appropriate.
Additionally, wards may lose the right to drive, to marry or
divorce, or to vote. This is an extreme measure, which most courts
are reluctant to implement unless there is very strong evidence
that the proposed ward is truly not able to make responsible
decisions.
Any competent adult can be named a Guardian or Conservator. If a
suitable volunteer Guardian is not available some Courts may have
the ability to appoint a public guardian. Many public guardians
are actually agencies designated to serve in this capacity.
Sometimes a financial institution such as a bank trust department
will be named as conservator.
While anyone who has an interest in protecting the health and
well-being of an adult can request a guardianship, this is not
something that most people will want to do without good legal
advice and representation. A guardianship hearing will involve
testimony by medical experts, either in person or by specific
documents submitted to the Court. The proposed ward must have
legal representation by his or her own attorney (the "attorney ad
litem"). This attorney can be appointed by the court if the
proposed ward does not have the ability to pay a lawyer. Often
family members must testify in the presence of the proposed ward,
which can be difficult.
If the Court determines that the proposed ward is, indeed, fully
or partially incapacitated, the investigation will turn to the
suitability of the person petitioning for guardianship. The Court
will look first to those who have been most closely involved with
the ward - in most cases a spouse, another family member or a
close friend. However, the Court is under no obligation to appoint
any particular individual.
Because guardians/conservators are granted so much authority the
courts remain alert to the potential for abuse. Guardians and
conservators have the duty to report to the court on a regular
basis about what they have done on a ward's behalf. An annual
report to the court about all financial transactions on behalf of
a ward are almost always required.
Guardianship proceedings are usually held in the Family or Probate
Court in the county where the proposed ward lives. Because the
Court maintains ongoing oversight of all Guardians and
Conservators, it will be especially important to have legal
representation if moving the ward out of the county or the state
is a possibility.
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