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There are several means by
which someone can have the right to make
decisions for an adult who is not capable of
managing his or her own affairs. The most
popular, and easily the least expensive, is by
use of a valid
Power of Attorney.
If there are no Power of Attorney documents in
place, and an adult is not competent to grant
one, then as a last resort authority to make
decisions about health, safety or financial
affairs can be granted by a court. A Guardian or
Conservator may be appointed by a Court only
after a fair hearing. This means that, if you
haven't been to Court, you have not been
appointed Guardian.
When an adult has been placed under the care and
supervision of a Guardian, he or she becomes a
"ward" in much the same way a child is a "ward"
of its parents. An adult ward can lose the right
to make many of the decisions we all take for
granted, including the right to decide where to
live and how money is to be spent or invested.
Because guardianship strips a person of so many
rights, the Court will make every effort to
avoid implementing a Guardianship if the same
ends can be achieved by less intrusive means.
Guardianship proceedings are
usually held in Probate or Family Court in the
jurisdiction where the prospective ward lives. The Court will
often
appoint an "attorney ad litem," or an
attorney whose sole job is to represent the
interests of the proposed ward. The Judge will request testimony
from professionals, family members, and also often
from the proposed ward. This means that
Guardianship proceedings can be very
uncomfortable for family members who must
testify about a loved one's inability to make
good decisions while that person is sitting in
the courtroom.
If, after hearing all
the
testimony, the Judge feels that guardianship is
warranted, the Court will appoint a Guardian.
Although most judges will take close family
members' desires to assume the duties of
Guardian into account, the Judge is not
obligated to appoint a family member. If the
judge believes that appointing a family member
is not in the best interest of the proposed
ward, he or she can appoint someone completely
unrelated.
Having guardianship of an adult gives a Guardian
legal responsibility to make decisions in
clearly specified areas of a protected person's
life. A Guardian may manage any
property and may pay bills and taxes. A Guardian
may decide where the incapacitated person will
live, and may make all medical treatment
decisions for a ward.
In some cases guardianship may be limited. In
this case the Guardian will be required to have
specific Court approval to do certain things
(i.e., sell a home or move the ward into a
nursing home). In most states, a Guardian cannot
admit a ward to a psychiatric hospital or
authorize certain drug therapies
that may have long lasting or dangerous side
effects without additional permission.
In some cases, a ward may be fully capable of
making some
decisions, but not others. It is not uncommon
for a Guardian to be appointed to manage a
ward's financial affairs, even if the ward is
able to make personal medical decisions, or vice
versa. In some states this financial Guardian is
called a Conservator.
Once appointed, a Guardian or Conservator does
not have the authority to do whatever he or she
chooses for the ward. A Guardian/Conservator is
always under the supervision of the Court that
made the appointment, and an annual report about
the ward's personal status and an audited
accounting of assets, income and expenditures
are usually required.
Because Guardianship proceedings can be complex,
and often controversial, it is usually best to
work with a qualified attorney who can guide a
prospective Guardian through the process. In
most states the process is not lengthy if
Guardianship is not contested. Many states also
have procedures in place to permit temporary
Guardianship in the event of a medical or
financial emergency.
A Guardian or Conservator is not required to use
his or her own funds on behalf of a ward. It is
the Guardian's duty to use the ward's funds in
the most prudent manner to provide the necessary
level of care and assistance. However, a
Guardian may be held liable if he or she has
improperly managed the ward's care, property or
finances.
Guardian ship is, frankly,
something to be avoided if at all possible. The
proceedings can be expensive, and the end result
is often traumatic for the proposed ward and the
family. If
other means can be used to achieve the same end,
then there may be no need for Guardianship or Conservatorship.
What Can
Prevent The Need For Guardianship/Conservatorship?
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| 1. |
When
there are Powers of Attorney, living trusts
and/or joint bank accounts in place; |
| 2. |
When a
hospital or nursing home is honoring the
nearest relative's authority to consent for
medical treatment; |
| 3. |
When no
decisions need to be made, or someone is
already making decisions and no is
objecting; |
| 4. |
When
Social Security has already appointed a
Representative Payee, or the Veterans
Administration has appointed a Custodian; |
| 5. |
When the
individual owns no property and has no other
significant assets; |
| 6. |
When
bills are already being paid by automatic
bill paying or money management services. |
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