The Role of a Guardian
Guardianship is a legal relationship between a competent adult and a person over the age of 18 and whose disability causes them to make irrational decisions. The incompetent person is called the ward. The disability may he caused by mental illness, developmental disability, accident, or other causes. A developmental disability or mental illness is not, alone by itself enough reason to call someone incompetent. Even advanced stages of alcoholism is reason enough to find a guardian or some other kind of court intervention in that persons life.
Competency has to do with a person’s ability to make an ‘informed decision’, or, with the risk of arm that they may experience due to their inability to provide for themselves or control their business. The court has the right to make the guardian last indefinitely. The only way to end it is to have the court end it. The only way that they do that is where the child reaches the age of majority and then they don’t need a guardian or if the incapacitated person dies.
The incapacitated person could also get better and then they wouldn’t need a guardian any more In the relationship between the guardian and the ward, the guardian is given the right to make decisions on behalf of the person with a disability. When a guardian is appointed, the ourt gives the guardian the authority to exercise certain legal rights in the wards best interest. The courts, when giving rights to a guardian, take them away from the ward.
Because guardianship involves such a serious deprivation of rights and dignity, the law requires that guardianship be executed only when other, less restrictive alternatives have proven not to work. If less restrictive forms of protection are not enough to protect a person from the risk of harm, then guardianship should be sought on behalf of the incapacitated person. A guardian’s authority is limited to those areas of decision making for which there is vidence to indicate that a person is incapacitated.
Some incapacitated people are able to make responsible decisions in some, but not all, areas of their lives. In these situations guardianship may be limited by the court to only those areas in which the incapacitated person is unable to make responsible decisions. Some individuals require a guardian who has responsibility for both the person and the estate. The primary responsibility of the guardian with duties pertaining to the ward is to provide consent for issues such as medical treatment and living situation.
A uardian of the estate is responsible for managing some or all of the property and/or income of There are three different kinds of guardianship. The first kind is the most common type and that is plenary guardianship. Plenary guardianship or complete guardianship is when the ward has very little capacity and the guardian makes all the important decisions. People found to be totally without capacity or understanding to make personal decisions or manage financial affairs, are given plenary guardians.
In determining a need for person guardianship, two prominent issues are medical decision making and residential placement. If a person is unable to give informed medical consent or is unable to live independently in an appropriate residence, person guardianship should be Estate guardianship is necessary where a person, due to some disability, cannot manage financial affairs. However, courts rarely appoint plenary estate guardians where estate assets are minimal. Bill paying assistance and money management assistance programs should also be considered before you seek an estate guardian.
Small estate amounts can be collected and disbursed, without resort to estate administration. Some courts encourage the use of small estate ffidavits and court-supervised deposits of wards’ funds as alternatives to estate guardianship. However, as stated before, many judges rarely appoint estate guardians in small or minimal Perhaps the least understood and least used form of guardianship applies where a person lacks some, but not all of the capacity to make personal decisions or handle an estate, the appointment of a limited guardian is not a finding of legal incompetence.
Limited guardianship is intended to be less severe and more individualized than plenary guardianship. Although guardianship is supposed to be used only to the extent necessary by a person’s ctual mental, physical and social limitations, courts tend to create plenary guardianship rather than limited guardianship, even where limited guardianship may arguably be more appropriate. One reason for the bias toward plenary guardianship is that the creation of an appropriate limited guardianship is complicated when compared to plenary guardianship.
A physician must clearly state between things a person can and cannot do and must clearly describe these things to the court. The court must then determine which of these rights will be taken from the person with disability, considering the consequences for each. The limited guardianship must be understandable to the guardian, ward and other parties that may depend on the document. Not all guardianship practitioners, medical practitioners and courts are able to make an appropriate, The following are some better alternatives, which should be considered before pursuing guardianship.
Representative or Protective Payee is a person who is appointed to manage Social Security, Veterans’ Administration, Retirement, Welfare Assistance or other state or Federal benefits or entitlement program payments on behalf of an individual. Conservatorship is a oluntary proceeding in which a person (the conservatee) asks the Court to appoint a specific individual (the conservator) to manage his or her estate. The court must find the ward incapable of managing his or her financial affairs, but capable of making the decision to have a conservator appointed to do so these actions.
Power of Attorney is a contract between two individuals where one party gives to the other the authority to make any number of decisions (e. g. medical, placement, financial) on his or her behalf. The person giving the power of attorney must be mentally competent to enter into the contract as learned in this class. If the contract is made and the six essential elements of a contract are met, the power of attorney remains in effect even if the principal becomes mentally incapacitated. Here is a case where some kind of guardianship or another court related act would have to take place.
A person with Alzheimer’s disease often loses all short-term memory and gradually loses even long-term memory. That person cannot make responsible decisions such as remembering to take medication or remembering to pay bills. If that person did not execute a power of attorney while he or she still had the legal capacity to do so, the only way for a family ember to take over bill payments or seek medical assistance for the disabled person is to execute a guardianship through court intervention.
In conclusion there are very many things you have to consider before you try to become a legal guardian. You must first think of what is in the best interests of the ward. Then, if you can, you should try to find some better, less restricting options, for him or her. Being a guardian to a child or a mentally disabled person is a big responsibility and should not be taken lightly. There are businesses and law firms, which can help you, research and become a guardian.
