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The Purpose of Legal Guardianship and When It Is Needed

may 19, 2020 | guardianship
The Purpose of Legal Guardianship and When It Is Needed

Sometimes, a loved one is unable to take care of their own physical and financial needs.

Legal guardianship is established when a person petitions their local court to allow them to act on behalf of a loved one who cannot make decisions on their own, and usually refers to either providing oversight for the life of a minor, or an elderly, or incapacitated individual. Guardianship names a third party as the caregiver who ensures the person they’re caring for, called the ward, has their physical and/or financial needs met.

When the ward of the guardian is under the age of 18, there may be a natural end date for this type of supervision. However, in some cases, the ward is an adult, and the legal guardianship may continue for the rest of the person’s life.

Laws vary by state, but those petitioning for guardianship of a loved one usually choose whether to provide oversight for their loved one’s medical and personal decisions, financial decisions, or all of the above.

What is adult guardianship?

In the case of older or incapacitated adults, guardianship is an effort to protect a loved one who is no longer making sound decisions. Family members may decide a person needs a guardian because of their inability to properly decide on matters such as dangerous activities, financial accounts, or their own health.

The legal process of guardianship names a guardian, sometimes also called a conservator, to oversee the person’s medical, personal, and/or financial decisions. In some cases, more than one guardian shares this responsibility. Naming a guardian and going through the legal process is not something to take lightly. Guardianship may be necessary to  ensure your parent or another family member:

  • Remains safe from abuse, neglect, and fraud.
  • Receives the necessary long-term care.
  • Receives the highest quality of life possible.
  • Receives the necessary medical care and treatment.
  • Remains protected from financial exploitation.

Depending on the specific details of your loved one’s condition and the reason for seeking guardianship, there may be alternative approaches that could protect your loved one without stripping them of their legal rights. Your lawyer may help you consider other options that may include:

  • Powers of attorney for financial decisions
  • Powers of attorney for health care
  • Establishing a trust
  • Living Wills
  • Sharing a joint checking account
  • Case management options
  • Other options available in your community

If none of these other options are viable based on the circumstances, adult guardianship may offer an appropriate option for your loved one.

Why might a guardianship be needed?

Deciding upon adult guardianship for your loved one can involve several considerations, so speaking to an elder law attorney may help you understand the process and responsibilities that guardianship entails. In some cases, families have tried a number of possible solutions that did not work, or worked until their loved one’s condition advanced, before they considered guardianship or conservatorship.

The need for guardianship for a minor child is somewhat easier to determine. A child may need you to step in and act as their guardian if:

  • Both parents pass away.
  • A parent or parents are ill and cannot provide adequate care.
  • A parent or parents are incarcerated.
  • A parent or parents are deployed in military service.
  • Both parents can no longer care for them for another reason.

When an adult is ill, elderly or otherwise incapacitated, the decision may prove more difficult. If they are still communicative, they may have strong opinions on the subject.

If they cannot make sound decisions or cannot communicate their wishes, an  attorney may help you decide if a power of attorney may be appropriate or instead a  guardianship. You can also discuss the topic with a doctor to see if they believe your loved one can make an informed decision about a power of attorney based on their current medical condition.

The guardianship process can sometimes take an extended period of time, but some circumstances make it apparent that guardianship is the right choice, and put in place quickly. Emergency guardianship may be possible and necessary if you can:

  • Prove that the loved one needs immediate medical care;
  • Show that the loved one  is being abused or exploited; or
  • Document another immediate need.

If you believe your loved one’s needs require emergency guardianship, your attorney can review your case to determine if they believe you should qualify based on the facts. Emergency guardianship is generally only granted in cases when someone’s inability to care for themselves puts them in extreme, immediate danger, and when there are no other options to manage the situation.

Where to file for guardianship.

Guardianship proceedings are generally handled by county probate courts. Your lawyer will be able to help identify where to file for guardianship. This will most likely be the county and state where your loved one currently lives, no matter where you currently reside or where the ward may reside following the guardianship proceedings.

Guardianships or conservatorships sometimes require a court appearance to finalize. The process to petition for guardianship varies from state to state and even county to county. In general, you or your lawyer will need to complete a number of forms and submit information about you, your loved one, their condition and take other steps before the court may set a hearing date.

As the petitioner in a guardianship case, you can expect to answer any questions about yourself, and explain why your loved one needs your care and support. You will likely need to submit documents that include:

  • Basic information about yourself and any co-guardian
  • Information about your loved one’s current state
  • A letter or certificate from your loved one’s doctor documenting their medical condition and demonstrating the need for guardianship
  • Other information as requested by the judge or court

Your lawyer may handle this process on your behalf, gathering the necessary documentation and filing the petition and related paperwork; only when complete does the case get set in your local probate court. Depending on the rules in your area and the circumstances of your case, your loved one may need to appear before the judge with you.

How long does a guardianship last?

While it would be nice to restore the rights of family members who need a guardian to ensure their health and safety, this is not always possible. This is because some guardianships are established due to progressive and/or terminal medical conditions, such as dementia, Alzheimer's disease, and similar conditions. In these cases, the guardianship generally ends when the senior passes away.

There are some cases, however, when it is possible for a person to have their rights restored. The court that approved a guardianship can also restore the person’s rights if their circumstances improve and they become capable of providing their own care and making sound decisions.

It is important to note that guardianship comes with a built-in system to ensure everything is going smoothly. This includes regular reviews and assessments to ensure:

  • The ward still requires a guardian.
  • The guardian is acting in the best interests of the ward.

The rules can differ slightly from court to court, but these check-ins often come in the form of an annual review. As your loved one’s guardian, you will want to keep records of all expenditures from their accounts and other information your attorney recommends.

Consult an attorney about guardianship.

If you are considering whether guardianship is necessary for your loved one you should consider discussing your case with a lawyer. LegalShield provides equal access to the liberty, equality, opportunity, and justice that every human deserves and expects.

If you are not yet a LegalShield Member, we would love to talk to you about how we may help your family navigate all of your legal needs. We offer legal plans for families, individuals, and small businesses.

Contact LegalShield

The LegalShield Family Plan benefits include access to family and elder law attorneys who may help you understand your options and navigate the guardianship process, if necessary.

To learn more about how LegalShield may help your family face your legal challenges, call (800) 654-7757 to discuss our plans.

LegalShield provides access to legal services offered by a network of provider law firms to LegalShield Members through member-based participation. Neither LegalShield nor its officers, employees or sales associates directly or indirectly provide legal services, representation or advice. See a plan contract for specific state of residence for complete terms, coverage, amounts, and conditions. This is not intended to be legal advice. Please contact an attorney for legal advice or assistance. If you are a LegalShield member, you should contact your Provider Law Firm.

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