When a person is impaired by physical or mental illness or another kind of disability and they haven’t had a legal power of attorney or health care power of attorney created, they may need a court appointed guardian to act on their behalf.
As explained in an article titled “Legal Guardians” from My Prime Time News, for the court to find the “protected person” in need of a guardian, it must find the protected person unable to receive or evaluate information or both, unable to make or communicate decisions to satisfy essential requirements for physical health, safety or self-care.
The guardian may receive the protected person’s income, such as Social Security, and pay bills. In some states, a conservator is appointed when someone has considerable assets requiring active management.
If a person needs help with the tasks of daily living and asset management, the court may appoint both a guardian and a conservator. One person may serve in both roles, unless the person is a “professional caretaker.”
In almost all cases, it is far better to have a plan for incapacity in place, with a trusted and known person named to serve as an agent to handle financial and legal matters, and the same or another person named to act as a health care proxy. Las Cruces Elder Law Services Attorney Michele Ungvarsky can help you create these documents before the need arises for loved ones to petition for guardianship.
To be appointed a guardian, a petition must be filed with the court and any interested persons must be notified of the petition. This includes spouse, parents, adult children, other caretakers and the treating physician. The petition must include a letter from a doctor indicating the need for a guardianship.
The process varies in different jurisdictions. However, the court usually requires a background check and a credit report for the person petitioning for guardianship. The court appoints a visitor to investigate and report whether an appointment for the guardian is necessary and if the person petitioning for the role of guardian is suitable.
After all this has been completed, a hearing takes place, with the protected person present. The court will make its decision. If the decision is to award the guardianship, the court issues Letters of Appointment and an Order, unless the protected person protests. The order requires the guardian and/or conservator to file annual reports with the court.
The guardian’s responsibility varies with the circumstances. The guardian’s powers should generally be no greater than needed to see to the needs of the protected person. The protected person should be encouraged to maintain the greatest degree of independence under their circumstances. While the guardian is not required to take physical care of the protected person, they are responsible for ensuring the protected person has an appropriate level of care, whether in a nursing home, assisted living or other institutional care.
The guardian’s appointment ends when the protected person dies, or if the guardian dies or if the court issues an order terminating their guardianship.
Our recent article, Avoid the Costly Mistakes of Guardianship with Advance Planning explains why it is essential for families who are concerned about a loved one’s capacity to manage their personal affairs first contact a Las Cruces elder law services attorney like Michele Ungvarsky. She can guide both the elderly or disabled person as well as the family members to ensure that clear communication is established about roles for helping the supported person in their affairs while also ensuring their choices are respected. Request to schedule a consultation with her office today.
