Guardianship bridges the gap between independence and protection, offering a court-guided way to ensure that those who cannot manage their personal, medical, or financial affairs are cared for with dignity and accountability. This court supervised process protects vulnerable individuals, referred to as wards or alleged incapacitated persons (AIPs). However, guardianship over another person is intended to be a last resort that is pursued only when less restrictive alternatives are insufficient.
Did You Know? With a Power of Attorney (POA) someone voluntarily gives another authority to make decisions on their behalf; however, with guardianship, a judge determines if an individual is incapacitated and appoints a guardian to make decisions for them.
Duties of a Guardian
Guardians have a legal duty to act in the best interests of the person they are appointed to serve.
If they are a guardian of the person, their job is to make sure the ward is properly cared for, has a safe place to live, receives medical/professional help they need, and is included in decision-making about their lives as much as possible. A guardian of the estate manages the ward’s money and property. This includes keeping the ward’s money separate from their own, maintaining detailed records, and filing regular reports with the court.
Being a guardian is about carefully managing both the personal care and the finances of someone who cannot fully care for themselves, with court oversight for accountability.
Guardians are expected to act honestly and in good faith. They can be reimbursed for reasonable expenses they pay on the ward’s behalf. However, they cannot personally profit from the ward’s life insurance or other assets — in other words, the ward’s money is for the ward’s benefit only. Many judges also require guardians to post a bond, which acts like an insurance policy to protect against misuse of funds.
Do you have the skills (and patience) to be a guardian?
What can you offer to the person that would be in their best interest?
Would your neighbors, friends, or your church community agree?
The Guardianship Process
Families and caregivers navigating guardianship need to be diligent in gathering thorough information supported by documentation (i.e., birth certificates, medical records, and expert opinions in the form of affidavits or evaluations) to support their petition. It is also helpful to present the court with your goal of why you want to be a person’s guardian. In sum, a petitioner must provide a court with enough information to determine that there is clear and convincing evidence to prove why a person allegedly cannot manage their personal, medical, or financial affairs. Medical and social histories, along with specific examples of behaviors demonstrating incapacity, are critical in supporting a petition for guardianship. Presenting a picture of the person’s daily life — such as their inability to manage their own personal care, lack of capacity to make medical decisions, or even maintain their own safety — are equally important.
In order to prove a guardian is necessary, the petitioner must present all of this information to the court with documentation as supporting backup in the form of exhibits to the petition—not just personal beliefs. This evidence is often in the form of physician affidavits, copies of incident reports, medical records, and testimony from family and friends as to why appointing guardian is in the person’s best interest.
Once the petition is filed, the court typically appoints a guardian ad litem (GAL), an attorney who represents the ward’s interests throughout the proceedings. The GAL meets with the alleged incapacitated person, assesses their capacity, and presents recommendations to the court regarding what is in their best interest. The GAL often talks with the potential guardians and any other family members or friends who are involved in the ward’s life to understand all the issues and dynamics in play.
After reviewing the petition, and the GAL’s report, a court orders a hearing. This hearing can be closed to the public if the court decides that would be appropriate as often times sensitive family history is discussed. During the hearing, both the petitioner, the ward (and sometimes other interested parties) are provided with an opportunity to testify, call witnesses, and submit evidence in support of (or against) appointing a guardian. After a hearing, a court will issue an order either granting or denying guardianship. An order granting guardianship may permit a ward to retain certain rights -- although some may be limited. For example, they may still vote or marry unless the court restricts these rights, but they generally cannot own or possess firearms or sign legal documents on their own.
Once appointed as a guardian, it is vital to carefully manage the ward’s affairs, maintain accurate records, and collaborate with professionals as needed to manage their personal and financial care. Guardians are also required to file an initial inventory of the ward’s financial accounts and assets. and then submit regular reports to the court, typically on an annual basis, detailing income, expenses, and any significant financial transactions. Keeping thorough documentation ensures transparency, accountability, and compliance with the court’s requirements while protecting the ward’s interests.
Alternatives to Guardianship
Before turning to guardianship, it is worth exploring whether a less restrictive option could meet your loved one’s needs. Sometimes, a healthcare proxy can allow someone you trust to help manage decisions without going through court. Assistance with finances can sometimes be managed as a representative payee for Social Security benefits, a joint bank account, or through a trust. For those who can still make some choices, a supported decision-making agreement lets them stay involved while getting the guidance they need. In many cases, planning ahead can provide stability and dignity without the formality of a full guardianship.
"You treat a disease, you win, you lose. You treat a person, I guarantee you, you'll win, no matter what the outcome."
~attributed to Robin Williams as Patch Adams
Overall, guardianship is a critical tool for protecting individual rights and incorporating protections for their well-being along with financial safeguards. Whether you are considering becoming a guardian or are concerned about whether a guardian is fulfilling their duties, the court process is designed to be a compassionate tool of the law — providing protection, support, and oversight for individuals who cannot fully care for themselves.
If you are in need of assistance, the attorneys at Collins Family & Elder Law Group can help.
