When an adult cannot make financial or health care decisions due to mental incapacity, someone still has to have the authority to make those decisions on their behalf. If there is a signed and valid power of attorney and advance directive naming a health care agent, the agent should be able to act for the incapacitated individual.

If no power of attorney and/or health care directive are in place, a court has to get involved and appoint someone to make decisions regarding the personal and property interests of the incapacitated person. A guardianship refers to the court-approved arrangement to have someone, the guardian, be formally appointed to act on behalf of the incapacitated person.

Guardianship removes many rights from the incapacitated person and should not be considered unless other methods have failed.

Applying for guardianship can be complex. A complaint for guardianship must be brought before the appropriate court, accompanied by two certifications from two physicians attesting to the person’s incapacity. The assets of the incapacitated person must be noted, and all family members and other interested parties must be served with notice of the proceeding. The court will appoint an attorney to represent the incapacitated person and a hearing will take place at which the court can inquire as to the facts of the case.

The person appointed as guardian is often a family member, but it can be someone else, such as an attorney or other type of professional guardian. Whoever is appointed is taking on a lot of responsibility, and is usually required to post a surety bond to ensure that the assets of the incapacitated person are not stolen.

The guardian of the person is required to managed the health care needs of the incapacitated person. The guardian of the property, or estate, is required to manage the assets, including the investments of the incapacitated person and pay the person’s bills. The guardian is required to file an annual report and accounting, which details the health status of the incapacitated person, as well as the assets and expenditures.

A guardianship ends with either the death of the incapacitated person, or the return to capacity.

What Can Go Wrong?

Guardianship is a particularly fraught area of law, due to the high level of responsibility of the guardian, the complexity of maintaining ongoing contact with the court, and of course, high conflict relatives. Due to the amount of court contact and responsibilities of the guardian, getting legal assistance is a good idea.