How to Establish a Guardian
If the courts determine an individual is unable to take care of themselves they can establish a guardian to provide for the housing, healthcare, food and other necessities of the individual or the “ward.” The guardian may also be required to evaluate the emotional and social needs of the ward. Most states call this legal process establishing a guardianship.
There are a variety of different types of guardianships including temporary guardianship, limited guardianship and emergency guardianship. The court will attempt create the least restrictive type of arrangement. For instance, the court may authorize a “limited” guardianship (contingent on the limitations of the ward) which outlines the duties of the guardian and the length of time the guardian is needed. The guardian is also responsible for reporting back to the court.
A guardianship is considered an extreme measure to care for another individual. Before proposing a guardianship the court generally considers whether other alternatives, including trusts, powers of attorney and representative payees, may offer sufficient care for the ward.
Prior to petitioning the court for guardianship, the petitioner (state-appointed guardian, family friend or family member) must prove guardianship is necessary. This can be done by proving incapacitation, which means the ward is unable to make responsible decisions and safely manage their own care.
- File the petition to with the appropriate court.
The guardianship petition process varies by state, but the petition is generally filed in probate court in the county where the petitioner or ward resides. Most petitioners hire lawyers to help complete and file the guardianship petition. - Attend the guardianship hearing.
The guardianship hearing is like an informal court hearing. All hearings are recorded. The goal of the guardianship hearing is to determine if the person is incapacitated. State processes vary, but generally, the board will consider if the present care of the person is adequate, what the person’s wishes for care may be or would have been if they were not incapacitated and what types of care arrangements may allow the least restrictive type of care (while continuing to ensure that the person is safe).The guardianship petition is also carefully reviewed to determine if the petitioner is qualified to care for the subject (the petitioner must be competent and at least 18 years of age). Medical evidence and any information on the ward’s condition must be presented to the court.Attendees of the guardianship hearing can include anyone who has a real interest in the concerned party, the guardianship applicant, and the subject of the guardianship application. If the subject of the application is unable to attend the hearing a member of the board will interview them prior to the guardianship hearing.The subject of the petition or ward must be notified of the pending petition. They also have the right to challenge the petition, to request legal representation for the hearing, and under some conditions, they may have the right to a medical evaluation.
- The Judge will make their guardianship decision.
Prior to the guardianship hearing, the court appoints a committee to evaluate the ward’s condition. The committee may include social workers, nurses or doctors. After the committee evaluation is completed a written report is created and given to the court. All committee members must present their written observations. An attorney will also meet with the ward, notify them of the impending guardianship petition and make sure they understand the petition. The attorney then must present their report to the court.With the evidence of the committee, the attorney and all other interested parties, the judge will make their decision regarding guardianship. As mentioned previously, the goal of the court is to seek the least restrictive but safest arrangement for the ward. If the court determines a limited guardianship or a conservatorship, who simply manages only the ward’s financial affairs is best, the court will limit the petition.
A guardian cannot be appointed on another person’s behalf simply because they are physically disabled or elderly. The ward has rights including:
- The ability to challenge the guardianship petition and the appointment of the guardian.
- To attend the guardianship hearing
- To hire a guardianship lawyer to represent their interest before and during the hearing
- To present medical evidence that would prove the ward is not incapacitated.
- Have a guardianship attorney cross-examine all witnesses at the hearing
- Object to the specific person who has requested guardianship through the petition
- Potentially choose their own guardian
- Always consider the best interest of the ward.
Guardians must make decisions which are in the best interest of the ward. If the ward can articulate their wishes, they should be followed, assuming they are in the ward’s best interest. The guardian should follow the goal of the court, which is to offer options which are the least restrictive to the ward, and which allow them to be self-reliant and maintain their dignity and privacy. - Evaluate medical care decisions.
The guardian must gather information about the ward’s medical care. The ward or medical doctors may provide information about the ward’s condition. If the ward is incapacitated then other legal provisions should be followed such as a medical directive or a durable power of attorney (if they exist). Family and friends may also be able to help determine the preferences of the ward.If medical treatment is controversial or dangerous, consult with the court about treatment options. Approval should be sought if the recommended course of medical action is to 1) withhold life-saving treatment, 2) allow medications or surgeries which are considered “experimental,” or 3) would permanently eliminate the possibility for the ward to have children. - Determine where the ward should live
Doctors and other family members can provide guidance on the living arrangements which may be least disruptive for the ward. Generally, it is best to keep the ward living in their own home, utilizing available assistance if necessary to provide a variety of services: meal delivery, in-home nursing services, and transportation services.If the health and safety of the ward does not allow them to remain in their home, the guardian should find a safe place for them to live. The guardian should visit the ward regularly to ensure their living arrangement is health and safe. - File necessary reports with the court
Each year the guardian must file an annual guardianship report either on or before the anniversary date of the appointment. This report may vary by state. The copy of the annual report must be sent to the following people: the ward, the ward’s conservator (if applicable), the ward’s spouse or living parent (if applicable), the ward’s attorney and all other interested parties. The guardian should also keep a copy of the report.In general, the report will outline the relationship of the guardian to the ward, the guardian’s responsibilities, the current medical treatment for the ward, the ward’s current emotional and physical health status, and financial status (if they are also managing the financial assets of the ward). States have their own forms, and these forms can be obtained from the Clerk of the Court at the appropriate courthouse.
The guardianship may be terminated if the ward dies, if the minor reaches adulthood, the court determines the guardian was not fulfilling their guardianship responsibilities or the guardian resigns from their position. If the guardian resigns, they are responsible to continue their duties until a new guardianship can be established by the court.
Some guardians fulfill their roles without compensation; others may, with court approval, be paid for their guardian services. Regardless of a guardian is normally compensated all guardians can be reimbursed if they spend their own money for the expenses of the ward. Guardians may also use the ward’s own financial assets to pay for the ward’s care. If a guardian is paid they should keep records of all expenses. Payment can vary based on the expertise and services provided by the guardian.
Guardians have legal responsibility to care for their ward. Misusing the ward’s funds, failing to get the ward adequate medical care or making decisions which are deemed “not in the best interest of the ward” are illegal, and the guardian can be held personally liable. Personal injury could be proven and liability assessed against the guardian if it is proven the guardian failed in their duty toward the ward (breach of duty), the guardian’s failure is the proximate cause of harm and the guardian’s failure caused loss or injury to the ward.
Do not accept a guardianship role without first consulting with a guardianship lawyer. Guardians who understand their roles and responsibilities can avoid potential legal issues. Guardianship lawyers provide a wide range of legal services to wards and guardians including:
- Interviewing the ward prior to the guardianship hearing
- Inventorying the assets of the ward
- Attending the ward’s incapacity hearing
- Filing the petition with the court for the guardianship appointment
- Creating a monthly budget for the ward
- Helping file tax returns
- Helping file the annual guardianship reports
- Monitoring the guardian’s actions to care for the ward
- Helping the guardian find adequate living facilities
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