Guardianship Law

What is a guardian? Who needs a guardian? How is a guardian appointed? We have the answers to these, and all your questions regarding guardianship.

In order to avoid the Court system, you can appoint a guardian that will care for you if you become incapacitated. One way is through a Durable Power of Attorney. A Durable Power of Attorney is a legal document one signs granting authority to another to act in their place. Another way is through a Trust. In your Trust you can designate who will be your guardian (who will take care of you) if you become incapacitated. If you have not appointed a guardian prior to becoming incapacitated, your loved ones will be forced to go through the Courts to have a guardian appointed for you. Your loved ones will appreciate the fact that you appointed a guardian, because the last place they want to be when you are ill is in a courtroom.

There are two forms of guardianship: guardianship of the property and guardianship of the person. Often they are both required; however, there are times when only one is necessary.

Guardianship of the property
A guardian of the property has the duty to locate and take control of the assets of the ward (incapacitated person). This includes, but is not limited to bank and savings accounts, investments and real property. The guardian must file an initial inventory and verify under oath as to its accuracy. The assets are placed in the name of the guardianship, and it the responsibility of the guardian to ensure that the assets are protected and spent as needed for the benefit of the ward. Annual accountings are required to be filed with the Court, and are subject to approval by the Court.

Guardianship of the person
Guardianship of the person is a more complex guardianship than a simple guardianship of the property. When a person has been determined incompetent by mental health professionals, or is adjudicated incompetent by the law, then the state appoints a guardian to care for and make major life decisions for the ward until the reason for incapacity no longer exists. The guardian of the person makes decisions affecting everything from the ward’s residence, medical care, travel, etc. Guardians of the person must file annual reports with the Court to keep the Court advised of the status and condition of the ward.

Your loved ones will be able to avoid the Court process if you have taken the appropriate steps to designate your guardian before your become incapacitated. And, Court costs and attorney’s fees will be saved.