A Guardianship is a legal proceeding made through a probate court to appoint someone as Guardian to exercise the powers and duties of an incapacitated person for personal matters (e.g. medical care, housing). Incapacity can be due to the fact that the person is a minor (under age 18) or because an adult is incapacitated by disability, illness, or frailty.
For minors, the most typical reason for appointment of a Guardian would be due to the death of the child’s parents. A Will for a parent often contains a provision for the appointment of a Guardian if both parents are deceased. The Will nominates the Guardian and the named Guardian can file the Will and an acceptance of appointment as Guardian with the probate court.
A Guardianship of an incapacitated adult is established by a Petition to the Court for appointment of a Guardian, typically supported by a physician’s statement in support of guardianship. This is a court proceeding, which means that the process could be time consuming or costly, particularly if the matter is contested. Likewise, medical information is typically necessary to prove the incapacity and therefore the process can be invasive to someone’s privacy.
Once appointed, a Guardian may have a range of powers for the incapacitated person’s care, comfort, and maintenance needs including health care, food, clothing, and shelter. A Guardian must file annual well-being reports to the court regarding the incapacitated person. Likewise, the Guardian must notify the incapacitated person each year of the person’s right to petition the court for a revocation or modification of the guardianship due to restoration of capacity or change in circumstances. The Guardianship ends upon the death of the incapacitated person or upon the incapacitated person’s restoration to capacity.
Typically, a Health Care Directive can accomplish the same result as a Guardianship at less cost and without involvement of a court, provided the person granting the Health Care Directive is competent. However, if the person is not competent or if the family situation is particularly rancorous, the additional time and cost of Court supervision may ultimately be the most efficient means to provide for the incapacitated person.
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