Guardianship

What is the purpose of a Guardianship?

A guardianship is the legal process by which one person, the Guardian, is legally empowered allowed to take over the affairs of a another person, the Ward, who is to some degree incapacitated. The Ward need not be totally incapacitated; it is sufficient that the Ward simply is not able to manage his own financial affairs or make decisions concerning his or her care. The incapacity need not be permanent, and guardianships can be tailored to the type and degree of incapacity of the Ward. Some types of guardianships grant the Guardian authority over the Ward's assets and income, while another gives the Guardian authority only over the Ward's care.

How do I go about getting a Guardianship?

Probate Court judges, or County Court judges sitting in matters probate, have the authority to grant guardianships. The person seeking the guardianship has the burden of demonstrating that the proposed Ward suffers some degree of incapacity. This usually requires the testimony of a physician who has examined the proposed Ward and provides the court with an assessment of the degree of incapacitation and the prognosis for the Ward. The Court then holds a hearing to determine the best interests of the Ward and assure that the Guardian is qualified and has the Ward's interests at heart. The proposed Ward is represented in these proceedings by an attorney appointed by the Court, called an attorney ad litem. .

Don't Powers of Attorney do the same thing?

Yes, a statutory durable power of attorney can give another person the power to act in your behalf in essentially the same way a Guardian does. However, a person must be competent to execute a Power of Attorney. This can be a problem if the person becomes incapacitated and did not execute a Power of Attorney while he had the ability to do so, or if the proposed ward suffers from some genetic condition and was never competent in the first place.

Are Guardianships expensive?

It depends on the degree of incapacitation, the extent of the powers sought by the Guardian, and the size of the Guardianship estate. All Guardians serve subject to the Court's supervision and are required to file annual reports regarding the Ward's condition and financial affairs, if applicable. If the Ward has a lot of assets and financial transactions, these reports can be somewhat involved. The Guardian is also required to post a bond in an amount set by the court to secure his performance and protect the Ward from malfeasance.

How do I start the process?

See a qualified attorney. The guardianship process is somewhat involved and requires the guidance of an attorney experienced in such matters.