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Guardianship 101

Posted by attorney Cortney Bethmann

Guardianship is a fairly complicated legal proceeding but can be necessary and beneficial in the right circumstances. Essentially, guardianship removes certain rights and responsibilities from one person and gives them to another. The primary reason for using guardianships is to protect the health and safety of people who cannot handle their own affairs because of incapacity. The courts will not order a guardianship just because you disagree with the decisions that someone is making. Generally, the courts are very hesitant to take away rights from people, and there are some very technical requirements that are strictly followed. Hopefully this post will help you understand the basics of guardianship (remember, each court may have some specific rules or procedures, so this information may not be applicable or accurate in all situations).

Terminology. Before we get into guardianship, let me explain a few terms that will be important to understanding what I am talking about. “Ward" describes the person who is under the guardianship and "proposed ward" is used to describe the person before the guardianship is final. “Guardian" is the person to whom the power is given over the ward and "of the estate" or "of the person" are added onto "guardian" to distinguish which role the guardian is responsible for. “Least restrictive alternative" is a legal phrase which describes the court’s effort to consider all the alternatives to guardianship first. I plan on discussing these alternatives in another post at a later time, but basically if there are other legal methods to accomplishing the goal, the court typically dismisses the guardianship case.

How to Initiate. There are at least 3 ways to start a guardianship case:

  1. Application by private attorney
  2. Application by court investigator after investigation
  3. Application by court appointed attorney (Guardian Ad Litem)

What is Required. In most cases, the court will require a document from a licensed doctor called a “Physician’s Certificate of Medical Exam". This document explains the medical need for guardianship and is required by many courts. Part of the complexity of guardianship is the term “incapacity" which is required to successfully obtain a guardianship. There are several ways to get this document completed by a doctor, but HIPAA issues can create some problems.

Rights that are Limited. The court can remove many of the ward’s rights, including the right to vote, the right to drive, the right to make medical or financial decisions, the right to make gifts, the right to marry, and many others. The key thing to remember is that the court is always seeking “the least restrictive alternative", so the court generally prefers to allow the ward to retain as many rights as possible while making certain the ward is safe.

Person vs Estate. Guardianship is technically divided into 2 different components – estate and person. The value or size of the proposed ward's estate influences whether these components are separated or combined. The guardian of the estate handles the financial decision making of the ward. This can be a very complicated job, particularly when trusts are involved. The guardian of the estate is required to file annual accountings with the court. The guardian of the person will handle everything non-financial, which specifically includes medical decisions. There are some limitations on what medical decisions a guardian of the person can make, but there is broad discretion typically.

Cost. Simply put, guardianship is expensive. This is one of the reasons the court looks for the least restrictive alternative. When a proposed ward cannot pay, the court may appoint a guardian ad litem or attorney ad litem to help with the case, but the court will generally use the ward’s funds first. In addition to the legal professionals required, medical and social professionals are used which increases the cost of guardianship.

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