Guardianship, when we’re talking about an adult, is usually set up in cases of age or illness. You might want guardianship over an elderly parent who suffers from dementia, for example. Guardianship isn’t a quick solution. You will have to go to court and ask a judge, who will want to hear from doctors, as well as any family members who object. Here are some answers to a few questions I often get on this topic:
How do I know when it’s time for guardianship?
If a person can no longer handle their financial affairs or make sound decisions about their care, it might be time to seek guardianship. (If they are still of sound mind, consider talking to them about establishing powers of attorney.) There are two types of guardianship, and you can ask the court to grant you one or both. There is guardianship of the estate, which allows the guardian to handle the ward’s finances, and there is guardianship of the person, which is for things like health care and living arrangements.
Do I have to go to court?
Yes. You have to file documents with the court, including a petition requesting guardianship. There are a lot of steps, which include time for an object from the person you’re seeking guardianship over (called the ward), as well as objections from family members. The judge will want the opinion of an expert (doctor, psychiatrist, etc.) and will consider all facts before making a decision in the best interest of the ward. Because guardianship takes away significant legal rights, the court does not award it without good reason.
Do I need to hire an attorney?
We usually recommend it, because there are a lot of hoops to jump through. An attorney can be especially useful if the ward objects or if family members disagree about who should be named guardian. It’s not impossible to handle on your own, but it can get messy.
Is there any way to set this up ahead of time?
Most attorneys would recommend having powers of attorney in place before a person becomes incapacitated or mentally incompetent. A person must be well, mentally speaking, when signing a power of attorney. If done properly, they automatically put someone else in charge of financial affairs and health care (two separate documents). There is no need to go to court when the time comes to take over that person’s affairs. The main thing to be aware of with a power of attorney is that it has to be someone you trust. And a power of attorney signed under intimidation or force will not be valid.