August 11, 2010

When is guardianship necessary?

If an individual is incompetent and has not designated an agent to act on his or her behalf by executing a General Durable Power of Attorney and Health Care Proxy, it may become necessary to file a legal action seeking appointment of a guardian.

How does someone obtain guardianship?

A petition must be filed with the court seeking the appointment of a guardian. Guardianship is the imposition of an involuntary court supervised decision-maker. A court must find a person to be mentally incapacitated and in need of someone to step in as decision-maker before a guardian will be appointed on behalf of that person. Whenever possible, a better alternative is to do the necessary planning ahead of time so that a guardianship is unnecessary.

What is the role of a guardian?

The central responsibilities of the guardian are to decide where the ward (the person on whose behalf decisions are being made) will live and how personal and medical care, meals, transportation, socialization and recreation will be provided. Additionally, guardians are to identify, collect and take control of the ward’s property (real and personal), establish a budget, pay the ward’s debts according to ability and priority, prudently invest the ward’s property when appropriate, and report to the court as directed about the status of the ward’s estate.

If I am the guardian of my parent, what happens if we move to another state?

You should check with the state from which you are moving and the state to which you are moving to determine the proper procedure for transferring the guardianship to the new state. Unfortunately, there are not yet any uniform procedures that can be followed.

Source: National Academy of Elder Law Attorneys, Inc.


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