When an adult loses the mental capacity to handle their finances, healthcare decisions, and/or living arrangements, a family member or friend will usually step in to provide assistance. Due to strict confidentiality and property laws, any would-be caretaker—including a spouse, parent, or adult child—will need special authority from the court to manage the incapacitated adult’s affairs. Unless the incapacitated adult previously issued a power of attorney, the court will need to appoint a guardian.
Types of Guardianship
Generally speaking, a guardianship authorizes an individual or agency to legally act on behalf of an incapacitated adult (known as a ward in guardianship proceedings). Within that broad definition, there are several different types of guardianships that allow the court to tailor the scope of the guardianship to the specific, unique needs of the ward:
- Guardian of the person – grants a guardian the authority to make decisions regarding the ward’s healthcare and living arrangements.
- Guardian of the estate – grants a guardian the authority to make decisions regarding the ward’s assets (financial assets, property, etc.).
- Plenary guardianship – in this type of guardianship, the ward is determined to be completely incapacitated. The appointed guardian will have complete authority over the person and the estate, with the ability to exercise all delegable legal rights and powers of the ward.
- Limited guardianship – in some cases, the court may determine that the ward is only partially incapacitated. For example, the ward may possess the mental faculties to make important healthcare decisions, but they need someone to handle their finances and living arrangements. Alternatively, the ward may be competent enough to handle their general finances but requires assistance in specific complicated transactions like selling real estate. If the ward isn’t incapacitated enough to warrant a plenary guardianship, the court will utilize a limited guardianship instead.
- Emergency guardianship – in emergency situations where the ward is in imminent danger of death or serious bodily harm, the court can appoint an emergency guardian for up to six days. While the process is expedited, the petitioner will still need to prove that the ward is incapacitated and that an emergency guardianship is necessary. If the ward still needs a guardian after six days, the court can extend the emergency guardianship into a temporary guardianship.
- Temporary guardianship – Similar to an emergency guardianship, a temporary guardian can be appointed for up to 60 days. If the ward still needs a guardian after 60 days and the formal guardianship proceedings haven’t successfully concluded, the court can extend the temporary guardianship when necessary.
- Successor guardianship – when an appointed guardian passes away or can no longer fulfill their duty of care to the ward, the court can appoint a successor guardian.
- Testamentary guardianship – this typically occurs when a parent designates a guardian for their minor children in his or her will.
Who Can be Appointed as a Guardian?
Although any individual or agency can serve as a court-appointed guardian, the ward’s spouse, adult children, parents, and siblings have priority (typically in that order). It’s up to the judge to determine who is best qualified to serve as a ward’s guardian. In rare situations where the judge is unable to find a family member who is qualified, willing, and able to serve as the ward’s guardian, the judge can appoint a professional or public guardian.
How to Become a Guardian
If you have a family member or friend who has lost their mental capacity and needs a guardian to manage their affairs, here’s how to go about the guardianship process:
- Choose a guardian – it’s best to begin with an open, honest dialogue with all of the ward’s family members who may have an interest in his or her well-being. Discuss your reasoning for guardianship, and, if possible, come to a consensus with the other family members on who should serve as the guardian.
- Hire an attorney – navigating guardianship proceedings can be a complex process, so it’s always advisable to work with an experienced attorney who can guide and represent you through the proceedings.
- Submit a petition for guardianship – with your attorney’s assistance, fill out and submit a petition for guardianship to the county court. You’ll need to file in the county where the ward lives, not in the county where you live (assuming you live in a different county).
- Submit the certificate of incapacitation – any physician or psychologist can perform an assessment and issue a certificate of incapacitation, but it’s usually best to get the certificate from the ward’s doctor or psychologist. That said, the court may require an independent evaluation, and the judge can assign an investigator to interview the ward and perform necessary due diligence.
- Serve notice of the hearing – you’ll need to serve official notice to the ward and any interested parties at least 30 days before the guardianship hearing. You can serve notice by mail, or via a personal delivery service.
- File proof of notice with the court – after you’ve served notice to the ward and the interested parties, don’t forget to provide the court with proof of notice. Failure to submit proof of notice will almost surely result in the initial hearing being rescheduled.
- Ensure the ward has an attorney – as the ward stands to lose their decision-making abilities, they’ll need an attorney to represent their interests and ensure that their rights aren’t violated. If the ward can’t afford a private attorney, the court will appoint a public attorney.
- Prepare a care plan – an integral part of proving your qualification to serve as guardian is to prepare and submit a viable care plan. It’s best if the plan has already been successfully instituted, but it’s not required.
- Attend the guardianship hearing – at the hearing, you’ll need to prove three things—that the ward is incapacitated, that a guardianship is in the ward’s best interests, and that you are the best qualified candidate to serve as their guardian. The ward’s attorney will argue for or against each of these points, and the judge will usually try to speak with the ward (either in person or via video conference) to personally gauge their incapacity. Interested parties will also have the opportunity to argue for or against your appointment as guardian. If the hearing is conclusive, the judge will grant you guardianship. If additional due diligence, assessments, and depositions are necessary, the judge will schedule a follow-up hearing.
Call Guardianship and Conservatorship Attorney Colton Johnston at (480)467-4313 to discuss your case today.