guardianship and incompetency
For some members of our society, legal protection may be necessary even after they have entered adulthood. These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves. In these cases, a guardianship may be established.
Guardians and Protected Persons
Guardianship, also referred to as conservatorship, is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a guardian, or custodian. There are two main types of guardianship: guardianship of the person and guardianship of the estate or property.
A guardian is typically a family member, friend, or fiduciary appointed by the court. A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property. Additionally, a person may be placed under guardianship who is prone to fraud or undue external influence.
While guardianship does attempt to maintain the protected person’s independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual.
Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:
- Choosing residence
- Providing informed consent to medical treatment
- Making end of life decisions
- Making property transactions
- Obtaining a driver’s license
- Owning, possessing, or carrying a firearm or other weapon
- Contracting or filing law suits
Right to Due Process
To safeguard the protected person’s right to due process, he or she may be entitled to notice of, and ability to attend all legal proceedings related to guardianship. In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross examine all witnesses.
Guardianship of the Person
Guardianship of the person often relegates the following responsibilities to the appointed guardian:
- Determining and maintaining residence
- Providing informed consent to and supervising medical treatment
- Consenting to and supervising non medical services such as education, psychiatric or behavioral counseling
- Making end of life decisions
- Paying debts and other expenses
- Maintaining the protected person’s autonomy as much as possible. The guardian may be required to report to the court about his or her activities on an annual basis.
Guardianship of the Estate or Property
Guardianship of the estate or property transfers the following responsibilities to the guardian:
- Organizing, gathering and protecting assets
- Arranging appraisals of property
- Safeguarding property and assets from loss, whenever possible
- Managing income from assets
- Making appropriate payments
- Obtaining court approval prior to any sale of major assets
- Reporting to the court the estate’s status on a regular basis
- Many guardianships are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.
Guardianship of Minors
Guardianships may also be used to protect the legal rights of a minor. In the event that a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed. Unlike an adoption, under a guardianship, parents may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.
A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have a steady income, suffers from an illness, or is incarcerated. In most instances, parental approval is sought prior to any legal proceedings.