Guardianship Laws for Adults

By David Carnes

A guardian is a person or entity appointed by a court to care for a person who cannot meet his own needs, known as a ward. Although the powers and duties of guardians are similar to the powers and duties of parents with respect to minor children, a court cannot appoint a guardian for an adult unless he is subject to a disability that prevents him from effectively caring for himself. State law governs guardianships.

Legal Incapacity

An adult cannot become a ward unless he is legally incapacitated. "Incapacitated" means that, due to a mental or physical disability, the proposed ward cannot make or communicate decisions regarding his own personal care and cannot effectively provide for his own health and safety. Some states will appoint a guardian with limited powers for an adult who possesses these abilities but lacks the ability to manage his own finances.

Procedure

The first step in the adult guardianship process is to certify that the proposed ward is incapacitated by preparing an affidavit to submit to the court. It must specify the type of disability suffered by the proposed ward and explain the effect of the disability on his ability to care for himself. The affidavit must be signed by a licensed physician and anyone else who participated in the evaluation of the proposed ward. The next step is to submit a petition for guardianship to the appropriate state court. The court rules on any objections to the proposed guardianship and investigates the fitness of the proposed guardian. It is the responsibility of the court to actively oversee and monitor guardianship cases.

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The Guardian

A guardian must be at least 18 years old and must be financially and physically capable of caring for the proposed ward. He must be of good moral character and must have no felony convictions. Some states require a guardian to be related to the ward, while others allow courts to appoint non-relatives and even social service agencies to guardianships. A guardian is entitled to payment from the ward's estate. In addition, every state has a public guardianship program, funded by state or local governments, to serve incapacitated adults who do not have the means to pay for the costs associated with guardianship and do not have family or friends who can serve as a guardian.

Powers and Duties

A court may limit the scope of a guardian's powers and duties to the minimum degree necessary to protect the ward's best interests. A guardian may be vested with a variety of powers including the authority to access the ward's confidential medical records, to make medical decisions on the ward's behalf, to manage the ward's finances, to decide what the ward will eat and to consent to or refuse to consent to the ward's travel plans. A guardian may be held legally responsible for providing the ward with food, clothing, shelter, social contacts and other day-to-day needs.

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References

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