A Basic Guide To Guardianship

By Jeremy A
A guardianship, also known as a conservatorship, is the legal right used if a person is no longer able to make or to communicate safe decisions about his or her person or property, and if this has caused them to become susceptible to undue influence and fraud. This process may remove many rights from a person and should therefore only be given consideration once alternatives have become unavailable or if these alternatives have proven to be ineffective.

The instances when a guardian might have to be appointed may include circumstances where a person has a mental or physical handicap which prevents him or her from taking care of their own basic needs. It is also necessary if the handicap puts the person in danger of harm. The appointment may also be a necessity in cases where the person does not have anyone who is legally responsible for them.

The procedure to appoint a guardian will vary from jurisdiction to jurisdiction. The normal procedure would be that the person seeking appointment of a guardian will file a petition with the court in the area where the incapacitated person lives. The petition will generally be accompanied by sworn statements or medical affidavits showing the person's incapacity.

It will also name the person who wishes to be appointed as a guardian or it will request the court to appoint a public one. The court will arrange for an evaluation of the incapacitated person to be done. If the court agrees to the appointment, letters of authority will be issued which will permit that person to act on behalf of their ward.

A guardian's duties are to make decisions regarding the person's way of life including their health care, residence, meals and social activity. The wishes of the person must be taken into account. The living conditions to which they are accustomed must also be considered.

It is possible for this appointment to be terminated. This will normally happen if the person recovers from the condition that initially necessitated guardianship. It can also occur upon the death of the incapacitated person. If the guardian is inefficient at the task, the court may terminate the appointment, or in the case where the guardian resigns, the court will appoint a successor guardian to take over.

It is possible to avoid guardianship by means of estate planning. In this way you will be able to include a power of attorney to allow someone you trust to manage your personal affairs. You will also be able to specify how you wish to live and be treated in the event of incapacitation.

The information you obtain in this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.