If a person is not competent to make his or her own decisions, and that person has not made a Power of Attorney, then you can only obtain the legal authority to act on behalf of the incapacitated person if a court appoints you as a Guardian. That person is then referred to as your “Ward”.
Typically, there are two scenarios where it is necessary to seek the help of a Guardianship Attorney. The first scenario is when an elderly parent or sibling becomes ill and has not made a Power of Attorney. The second scenario is when a special needs person (such as an Autistic child) turns the age of 18. Until the child turns 18, a parent can legally make decisions for him or her. However, once a person turns age 18, he or she is legally an adult and is obligated to make his or her own decisions. Since a special needs child may not be able to make his or her own decisions, then the parents will need to go through a Guardianship proceeding to continue to have the legal right to handle their child’s affairs.
Once a Court appoints you as Guardian for another person you can:
- make health care decisions for the Ward;
- handle the finances of the Ward (although in some states this may be the job of a Conservator);
- enter into contracts on behalf of the Ward;
- deal with government agencies on behalf of the Ward; and
- make decisions regarding living arrangements.
What is the process for naming a guardian?
Step 1: Determine if there is a need for a Guardianship, or if there is a better alternative (such as a Power of Attorney).
Step 2: Meet with Guardianship Lawyer to discuss all the information needed to help the attorney file any legal paperwork on your behalf. (E.g. Who will be the guardian, who would be a good backup guardian, what is the disability of the person, what are the living arrangements and needs of the person, who are the doctors, caregivers, does the person have any money in his/her name, etc.)
Step 3: Get the doctors to sign affidavits confirming the person’s inability to handle his or her own affairs.
Step 4: File the paperwork with the Court to have the person declared an incapacitated person and have the Court order an attorney be appointed for the person.
Step 5: Work with the Court appointed attorney to make sure that they have the information they need to file a report with the Court. The attorney for the alleged incapacitated person will need to interview such person and the proposed guardians.
Step 6: The court appointed attorney will need to file a report with the court either recommending guardianship, limited guardianship, conservatorship or that no guardian be appointed.
Step 7: The Judge will then rule on the matter.
If the guardianship is uncontested, the process usually takes about two months (depending upon the jurisdiction) and can cost about 10 to 20 times the price of a Power of Attorney. If the guardianship is contested by either by alleged incapacitated person or someone else who wishes to act as guardian, the costs can escalate quickly. Accordingly, it is usually best to make sure that all parties are in agreement with the guardianship plans.
For more information on Guardianships, please visit my blog: Kevin A. Pollock BLAWG