Guardianship is a legal process that involves the adjudication of an allegedly incompetent person and the appointment of a Guardian over that person. In other words, a court makes a determination, based on the evidence presented, as to whether a person is incapable of making important decisions concerning their own personal welfare and/or financial resources. Once a person is adjudicated incompetent, a suitable candidate is often presented to the court to determine their eligibility to act as guardian and whether they can faithfully execute and manage the many responsibilities that come along with being a guardian.
Once deemed incompetent, the individual is commonly referred to as the “ward.” A close family member that is both eligible and willing, may be appointed guardian over the ward’s person, estate, or both. Note that guardianship is not to be used as an attempt to control an individual’s behavior. It is most appropriate where there are no other simpler alternatives available, such as pre-existing General Durable or Healthcare Power of Attorney documents. The overall purpose of guardianship is to appoint a guardian to help an individual exercise their rights.
How do you know if someone is incompetent? Ultimately, the answer to that question lies with the court. However, there are numerous considerations that can be taken into account.
Pertinent questions include:
- Whether the individual can understand and participate in regular conversations?
- Whether they make decisions related to household chores, following a daily schedule, using a bank, or shopping at a store?
- Do they understand and can they communicate their healthcare choices and follow medication instructions?
- Can they pay their own bills and manage their own finances?
- Are they subject to financial exploitation by others?
- Can they recognize danger and seek shelter as needed?
- Is the person able to eat and drink independently?
- Is the person able to maintain their own personal hygiene?
Note that this list is not comprehensive, but it serves a logical purpose. Every guardianship involves a review of an allegedly incompetent person’s mental and physical condition. The primary focus is on their ability to be responsible for their own personal and financial welfare.
Once a person is adjudicated incompetent by a court, the next step is to determine who will be appointed as guardian. As previously mentioned, there are several ways that can happen. The court will seek to appoint a suitable candidate in every guardianship proceeding. A suitable candidate may be appointed as a “Guardian of the Person,” or GOP for short. A GOP is appointed for the sole purpose of performing duties related to the care, custody, and control of the ward. A “Guardian of the Estate,” or GOE, is appointed to manage the property, estate, and business affairs of a ward. A “General Guardian” is defined under the relevant statute as a guardian of both the estate and the person. In some situations, a limited guardian is appointed allowing the ward to retain certain legal rights and privileges, dependent upon the nature and extent of the ward’s capacity to make and communicate decisions related to their personal and financial welfare.
A guardian candidate’s suitability really hinges on their ability to make knowledgeable, informed decisions about the ward’s personal welfare and/or their income and property. Additionally, the court will consider the proximity of the proposed guardian candidate to the ward. It is preferred that a guardian be local to the ward’s area and available to the ward when needed. Be mindful that the court does not always appoint a family member as guardian. For example, the court, in considering the best interest of the ward, may appoint a third-party attorney to handle a ward’s financial matters where there is no other suitable candidate. Ultimately, the decision rests with the court.
Here at McIntyre Elder Law, we regularly help families decide whether guardianship is the best answer. Once confirmed, the need for guardianship becomes a legal process handled by our professional team. If you believe that guardianship may be in order or if you have concerns about a loved one’s competency and ability to handle and manage their own affairs, please call (704) 259-7040 to schedule your free consultation today.
Estate Planning & Elder Law Attorney