What Is A Guardianship And When Is It Appropriate?

Guardianship is a legal process appointing a ‘competent adult’ (guardian) to be responsible for the care, custody and control for a ‘vulnerable or incapacitated person’ often referred to as a (ward). A ward is a person who lacks the ability to make or communicate responsible decisions concerning life’s most basic needs.

If you are responsible for or care for someone who is unable to make or communicate responsible decisions concerning daily living activities such as:

  • Providing food, clothing and shelter for themselves;
  • Caring for their own physical health;
  • Managing their own financial affairs;
  • Making appropriate judgments to protect themselves personally, physically and financially;

They may need a guardian.

The need for a guardian may be caused by:

  • A developmental disability such as Autism, Down Syndrome, Cerebral Palsy,
  • Mental illness; Alzheimer’s, dementia, or senility,
  • Traumatic Brain Injury,
  • Accident, illness or other causes.

Duties Of A Guardian

A legal guardian has the power and the responsibility similar to that of a parent toward a minor child.

A guardian must make sure that the ward’s abilities, desires and choices are considered while meeting their basic needs. A guardian has the duty and right to act on behalf of the individual, making decisions affecting their daily living arrangements, medical care, education, and social activities.

Who Can Be A Guardian And How Is A Guardian Appointed?

Any qualified person can be appointed guardian of an incapacitated person. A guardian may be the spouse, parent, adult child, or any other relative with whom the ward has resided for more than six months. A private fiduciary or professional guardian may also be appointed if no family member is able to serve. When there is no person or corporation qualified or willing to act in that capacity, a public fiduciary will be appointed by the court in a guardianship proceeding.

The process involves:

  • Document preparation to request the courts appoint a guardian;
  • Arranging legal representation for the proposed ward;
  • A physician or psychiatrist determining the degree of incapacity;
  • A court visitor/investigator provides an unbiased overview of the circumstances regarding the request for guardianship;
  • If guardianship is appropriate, a judge will make the final decision.

Did You Know?

When a person turns age 18:

  • They become an emancipated adult. This means you can no longer make medical, educational, or legal decisions on their behalf. You must go through the legal process to be appointed guardian by a court.
  • Schools are not required to notify parents of educational related activities, including the IEP process, unless they have been appointed as legal guardians. This includes a person with a developmental disability.
  • Even if you are the appointed guardian and later move to another state, you are required to petition the local court for guardianship.