A guardian is a person or institution appointed by the court to manage the affairs of another. Guardianships are commonly used for individuals who are incapacitated, and incapable of making personal and/or financial decisions. Guardianship isn't something that most people plan for, but it can be an essential protection if someone cannot take care of themselves or their property.
Normally, guardianship proceedings are a last resort. The need for guardianship proceedings can be avoided through effective Estate planning and the use of Durable Powers of Attorney and Living Trusts. Guardianship proceedings can be both emotionally and financially draining. The courts are hesitant to appoint a guardian unless absolutely necessary, because, when a guardian is appointed, people lose rights to make basic decisions about their life and property.
“We have had the pleasure of working with James on a complex guardianship issue. He represents his client's best interest in a compassionate and competent matter. The case is quite complex and his work has been stellar.” September 30, 2009
Shay Jacobson, President, LCI
A guardianship provides essential protection where an individual fails to prepare advance directives such as Durable Powers of Attorney, and that individual later becomes incapacitated. This situation frequently occurs when a special needs child becomes an adult, or an older person loses the ability to make decisions due to dementia.
To obtain a guardianship, someone must file a petition with the court explaining why the person needs a guardian, and who is qualified to be appointed. An examination by physician, psychologist, or psychiatrist must be attached to the Petition explaining the physical or psychological needs for guardianship. Notices of the proceeding are given to the individual and to others who are interested. A Guardian Ad Litem, who acts as the court's eyes and ears, will be appointed and will interview the potential ward, review the circumstances of the situation, and report back to the judge. At the court hearing, a judge will hear evidence about why the person needs a guardian.
Generally a family member will be called upon to act as a guardian for another family member. However, a guardian can also be a friend or a professional guardian, such as a public guardian, a bank, or a not-for-profit agency. In the end, the court decides makes the decision as to whom will be guardian. The court also decides how much authority to give to the guardian. A guardian might be appointedonly to make decisions about living arrangements, personal needs and medical care. Or, a guardian might be appointed only to make decisions about finances and property. Guardianship of the person provides powers related to health and well being of the person, including their medical care. Guardianship of the estate provides powers related to the financial management of the person's assets and income. The same person or agency could be appointed to make both types of decisions.
If you are appointed as a guardian, the court's order will tell you what decisions you are allowed to make. You may have just a few powers, or need to make most of the decisions on behalf of your ward. You must carefully understand the line between what you can decide and the rights that your ward keeps. You must try to make choices based on the ward's values, and to involve the ward in making decisions whenever possible.
Being guardian for someone else is a major undertaking. You will need to be in frequent contact with the court and your attorney to make sure you are properly acting on behalf of your ward. We are able to assist you if guardianship proceedings are appropriate for someone you love.
FOR MORE INFORMATION ON THIS SUBJECT OR TO SCHEDULE AN APPOINTMENT PLEASE CALL THE LAW OFFICE OF JAMES C. SIEBERT & ASSOCIATES AT 847-253-7500, E-MAIL INFO@JCSLAW.COM OR YOU MAY CONTACT THE LAW OFFICE OF JAMES C. SIEBERT & ASSOCIATES THROUGH THIS WEBSITE.