When an adult lacks the capacity to care for themselves and make rational decisions, a judge can appoint a guardian to handle their affairs and legally act on their behalf. The guardianship responsibility usually falls to an adult child, parent, or sibling. Guardianship proceedings are emotionally charged and can feel overwhelming, but with the right preparation it can be a relatively simple process. Following is a brief discussion of how guardianship works, how to initiate the proceedings, and what to expect throughout the process.
What does a court-appointed guardian do?
Generally speaking, a guardian is tasked with handling the tasks and decisions that an incapacitated person cannot handle on their own, especially when it comes to their living situation, healthcare, and finances. Some common responsibilities of a guardian include:
- Prudently managing the adult’s assets and investments
- Selling property and liquidating assets to cover medical and living expenses
- Paying the adult’s bills
- Determining where the adult will live
- Monitoring the adult’s living situation to ensure proper care
- Accessing the adult’s medical records
- Consulting with the adult’s doctors and make important medical decisions regarding treatment and care
- Filing the adult’s tax returns
Who can serve as a guardian?
When determining who will serve as guardian for an incapacitated or disabled adult, the court will initially seek input from the adult in the form of a durable power of attorney, will, or advance healthcare directive. In the absence of these documents, the court will give preference to immediate family members, especially adult children, siblings, or parents.
How does the court appoint a guardian?
The process begins when a family member files a petition with the court to appoint a guardian. Once the case is opened, the court will schedule a hearing, and the petitioner will need to serve notice of the hearing to the adult, family members, and applicable agencies.
At the initial hearing, the petitioning family member will need to prove two things: that the ward is mentally incompetent, and that they are qualified to step in as the ward’s guardian. To prove that the ward is incapacitated, the court will need to see expert witness in the form of a physician’s certificate of incapacity. Keep in mind that the judge isn’t just trying to understand whether or not the individual is incapacitated—the judge will need to know the extent of their incapacitation, if it’s permanent or temporary, and if there is anything the individual may still be mentally fit to handle on their own.
Proving that you are qualified to serve as the ward’s guardian may sound simple, but it’s not necessarily as easy as it sounds. The courts like to see a care plan, and a history of successfully assisting the ward. The judge will also look for any red flags that may disqualify someone from serving as guardian, such as evidence of elder abuse, fraud, and inappropriate use of the individual’s assets. In some cases, a judge may also consider how financial factors like a recent bankruptcy or court judgement that could create a conflict of interest.
To protect their due process, the adult has the right to retain counsel during the guardianship proceedings. If they cannot afford an attorney, or their incapacitation prevents them from understanding their rights, the court will appoint an attorney for them. Hiring a lawyer for an incompetent individual may sound counterintuitive to some, but it’s an important measure to ensure that the ward’s best interests are preserved through due process. Taking away someone’s freedom to govern themselves and their property is not a light matter, and unfortunately there are plenty of cases of elder abuse and fraud where family members or friends attempt to unlawfully take control a ward’s assets. The court-appointed attorney will ensure the ward’s rights are protected during the guardianship proceedings, and even throughout the guardianship if necessary.
When the petitioning family member is determined to be qualified, the court will formally appoint them to be the guardian. If there are multiple parties petitioning for guardianship, the judge will determine who is best fit for the responsibility. In cases where there is too much discord amongst family members, or there are no family members to serve as guardian, the court can appoint a professional or public guardian instead.
How is a court-appointed guardian paid?
Guardians are entitled to reasonable compensation for their time, though many family members who serve as guardian serve without compensation. What is considered “reasonable compensation” depends on the type of services performed by the guardian, and it can vary from case to case based on the court’s opinion. If the guardian is paid for their time, it’s usually done with an annual payment, and is generally no more than 5% of the incapacitated individual’s annual income.
A guardian is also entitled to reimbursement for out-of-pocket expenses. This is much more straightforward than compensation for time and services, though it requires diligent recordkeeping by the guardian.
How much does court-appointed guardianship cost?
Reasonable compensation for the guardian is rarely the most expensive part of the court-appointed guardianship process. The legal process can unfortunately be long and costly. Some common costs of guardianship include:
- Court costs for filing the guardianship petition
- Attorney’s fees for filing the guardianship petition
- Fees for professionals who attest to the adult’s incapacity (doctors, psychologists, social workers, etc.)
- Attorney’s fees for the attorney appointed to represent the adult’s interests
- Costs of notifying family members of hearings and proceedings
- Ongoing attorney’s fees during the course of guardianship
- Accounting fees for recordkeeping and audits
Can a court-appointed guardian be dismissed?
A court-appointed guardian will be required to report their activity to the court annually. If the court finds the guardian is failing in their responsibility, the judge will appoint a new guardian.
What is the difference between a guardian and a conservator?
Guardianship grants someone full authority over the ward’s personal, medical, and financial affairs. Conservatorship limits that authority to assisting with the adult’s financial needs. While conservatorships are not as common, they are ideally suited for situations where an adult is proven to be financially incompetent, but is not incapacitated to the point that they cannot make rational decisions regarding their living situation and healthcare.