When a health event occurs or someone becomes ill, that individual could become incapacitated and unable to manage his or her own property or issues facing his or her health or personal matters. In this unfortunate situation a trusted family member or friend or possibly a professional would need to take control of the individual’s property and assets in order to pay bills, allocate money and make all necessary financial decisions. Additionally the Guardian may need to address medical issues as well as issues of residency and the like.
Ideally, the individual who has become incapacitated would have planned ahead for such an eventuality and would have created a durable power of attorney or a living trust in order to designate someone to act on his behalf. Unfortunately, many people do no plan ahead for a time when they might become unable to manage their own affairs, which can create a messy situation where things need to be done and no one has the legal authority to do them.
In this situation, a guardianship might be the answer.
What is Guardianship?
A guardian (a type of fiduciary) will be appointed by the court and vested with the legal permission to manage the affairs of someone who has become incapacitated and who is no longer able to manage his or her own property, assets or their personal affairs.
For example, an adult daughter might be named as guardian of her father’s assets if her father develops a serious medical condition that renders him unable to act on his own behalf. This would then give her the authority to manage his money and make other key financial and personal decisions for him under the jurisdiction of the court. A guardianship can be plenary (where all rights of the incapacitated person are removed) or limited (where only certain rights are removed).
How Do Guardianships Work?
Typically, a guardianship is created when a family member or friend makes a petition to the court indicating that his or her loved one is not able to manage his or her affairs. The court will evaluate whether the incapacitated individual really needs someone to take over for him or her and will also determine whether the person requesting to be the guardian is an appropriate person to be put in charge.
If appropriate, the court can give the guardian authority over the financial matters of the incapacitated person and/or authority over the person himself. Once adjudicated, the incapacitated person is reffered to as the “Ward”.
Guardianship is a very important legal tool to allow for those who are sick to be taken care of. However, the process of becoming named a guardian can be complicated and expensive. It is far better to plan ahead whenever possible to ensure that someone is designated by a power of attorney, trust or other legal agreement in case of incapacitation which, in some cases will eliminate the need of a Guardianship.
It is important for everyone to seek legal counsel regarding the subject of incapacity. A certified Elder Law Attorney can explain this complex area of the law and recommend what types of legal documents you may need.
category: Guardianship & Incapacity