A guardianship is a court proceeding in which a judge decides that an adult can no longer manage some or all of their own affairs and appoints someone else to do it. It is an important protection for vulnerable people, but it is also one of the most restrictive steps the law allows, and it comes with ongoing court supervision.
When is a guardianship needed?
Guardianship usually becomes necessary when a person has lost capacity because of dementia, a stroke, a brain injury, or serious illness, and has no valid planning documents in place. Without a durable power of attorney and advance health care directives, banks and medical providers may refuse to work with family members.
Guardianship may also be needed when a vulnerable adult is being financially exploited, or when a person with a developmental disability is turning 18 and needs help making decisions.
What guardianship involves
A guardianship case involves a court petition, medical evaluations, a hearing, and a judge’s decision about which rights the person keeps and which are given to a guardian. Once appointed, a guardian has ongoing duties to the court, including reports and court approval for many decisions. Courts also look at whether less restrictive alternatives could meet the person’s needs.
Avoiding guardianship through planning
For most families, the best way to avoid guardianship is to put the right documents in place while you are able to sign them, including a durable power of attorney, advance health care directives, and often a revocable living trust. For a young adult with a disability, alternatives may include tools such as an ABLE account or a special needs trust.
Specific legal requirements, and why they matter
Guardianship proceedings and the planning documents that can avoid them have highly specific legal requirements and significant consequences for a person’s rights and property. Whether you are trying to avoid guardianship or need to pursue one, the details matter.
Our attorneys are experienced at preparing incapacity planning documents to the correct legal specifications, tailored to your needs, and at representing families who petition for guardianship and guardians who are carrying out their duties.
Contact us today for a consultation
Call Jackson+Jackson to schedule a consultation about guardianship or the planning that can avoid it.
This article provides general information only. It is not legal advice, and reading it does not create an attorney-client relationship. Every situation is different; please consult an attorney about yours.