When it comes to the legal term guardianship, most people think of someone taking charge of a minor when their parents are unable to care for them. But while not as common, there are circumstances when an adult becomes incapacitated to the point where they cannot meet their own needs.
In these cases, a guardian is named or appointed to help with their physical and healthcare needs and financial affairs. So what are the circumstances that an adult may need a legal guardian, and how is one chosen and appointed?
An adult may need a formal legal guardian if they struggle to meet their basic needs or cannot manage their own personal affairs. In many cases, it is a medical issue that renders these individuals debilitated. For example, if someone has a heart attack or stroke and suffers brain damage as a result, they may no longer be able to perform even the most basic tasks or deal with their finances and other affairs.
Guardians are also often appointed for adults that are developmentally disabled and unable to live by themselves, such as someone with Down Syndrome or low-functioning autism.
There are three categories of guardianship, each with its own set of duties and responsibilities. Depending on the circumstances, a guardian may be named to perform only as one type of guardian, but can also be appointed to perform all guardianship duties.
Types of guardianships and their corresponding duties may include:
- Guardianship Of The Person: This type gives the guardian the ability to manage the incapacited person’s healthcare and medical needs. Their duties include making and attending doctor’s appointments, dealing with insurance issues, paying medical bills, coordinating with assisted living or nursing homes, amongst others.
- Guardianship Of The Estate: Also called Guardian of Property, this appointment puts the guardian in charge of all of the incapacitated person’s finances and assets. Monitoring bank accounts and assets, filing taxes, and handling personal and real property are just some of the things that a guardian of the estate does.
- Plenary Guardianship: A plenary guardian combines the duties of both the guardianship of the person and of the estate. This means that they are charged with the incapacitated adult’s healthcare needs and the management of their estate.
A guardian’s duties can be limited under the right circumstances as well. A court can decide to appoint a guardian advocate instead of a full guardian, which gives the incapacitated person a higher level of control and decsion making.
An adult guardian is appointed through a court order. The person seeking guardianship will file a petition in the proper court and appear in front of a judge to establish the potential ward’s incapacity and/or disability. A qualified guardian is someone who is a legal adult (over 18) and has no disabilities themselves.
Many states also place other requirements on potential guardians including restrictions on those with a criminal record. Courts are more likely to appoint family members such as parents and siblings, but most also take the incapacitated or disabled person’s wishes into account, if they are able to express them.
Although not all incapacitated adults have the ability to do so, it is possible to plan ahead for guardianship purposes through estate planning. An individual can include their wishes in advanced directive or appointment of guardianship form. This allows you to detail who would want to serve as a guardian in case you become incapacitated or disabled in the future. If valid, judges will honor these documents unless there is serious and overwhelming evidence that the named person is not fit to serve.
Yes. Because a guardianship appointment is done by court order, any actions that violate either the order or any estate planning document that details their rights and responsibilities is legally binding. For example, if a guardian takes unreasonable actions and risks with their ward’s money or other assets, they may be held financially liable for any losses. If the guardian fails to perform their duties properly and the incapacitated person is harmed as a result, then a lawsuit may be in order.
Appointing an adult guardian is a serious matter that comes with an immense amount of responsibility. If you are looking to plan ahead, contact an estate planning lawyer to help you draw up the right documents and make sure all your wishes are met.
If an adult family member suddenly becomes unable to care for themselves and does not have anything else in place, you will want to contact a family law attorney, They will guide you through the process of petitioning the court for guardianship appointment and be your advocate every step of the way.