A guardianship is an arrangement determined by the court which places someone in the position to oversee the care of an incapacitated adult. Incapacitation may occur when someone has cognitive issues due to dementia, a major stroke or severe mental illness, or another condition which affects the person’s decision-making process. A guardian helps make personal decisions, such as decisions regarding medical treatment and residential placement, ensuring that the person in their charge gets adequate medical treatment and care, and personal needs are met. A helpful tool to determine whether you need to proceed with a guardianship is here: ABA Practical Tool for Guardianships.
- Cannot independently meet essential requirements for care, health, safety, or therapeutic needs
- Cannot provide self support, manage finances or property, and/or provide for legal dependents
Poor judgment or controversial choices are not, on their own, considered sufficient evidence that someone is incapacitated.
An individual’s mental capacity is determined by exam by a medical physician or a psychiatrist, and documentation of the exam findings is provided as evidence to the court.
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If a guardian also is making financial decisions as appointed by the court, he or she is a conservator – a similar role, which focuses on overseeing estate management and assets.
The following questions need to be answered as part of petitioning for guardianship:
- What is the reason for pursuing guardianship?
- What is the daily routine like for the individual in need of guardianship? How will those needs be met by the guardian?
- Are there any individuals opposed to the guardianship? If so, why?
- Are there sensible alternatives to putting a guardianship in place, such as adult day care, visiting nurses, home health aides, multipurpose senior citizen centers, or residential care facilities?
Pursing guardianship of a loved one, or putting into place a designated guardian as part of a long-term estate plan, is part of a complex, often emotionally-laden process. Let the experienced estate planning attorneys of Hook Law Center guide you through the process.