A guardian is appointed by the court to act on behalf of an individual’s person, property, or both. Guardianships are established for individuals who need assistance in taking care of and protecting themselves and/or their property.  A person for whom a guardianship is established is a ward.   Guardianships are supervised by the court, and guardians are required to seek court approval to perform certain tasks, such as selling a ward’s property.  Guardian must file yearly reports with the court on each case.  A guardian can be can be an individual, a nonprofit corporation, or a financial institution such as a bank trust department.   Deeb Elder Law, P.A. represents both professional guardians and also individuals who are appointed to serve as guardians for family members.   Professional guardians must complete a specialized course, pass a comprehensive examination, post a blanket bond with the court, undergo background investigations and  register with the Department of Elder Affairs through the Statewide Public Guardianship Office.

A guardian may be appointed by the court when an individual has been declared incapacitated, usually because of  illness or injury.   Prior to making a determination of an individual’s capacity, the court must appoint an examining committee to report to the court on the person’s ability to exercise specific rights, such as the right to contract and the right to consent to medical treatment.  The examining committee consists of three individuals who meet specific criteria set out in the applicable statute, one of whom must be a psychiatrist or other type of physician. 

In the incapacity hearing, the alleged incapacitated person is represented by a court-appointed attorney.  After the presentation of evidence, the court determines whether the individual is incapacitated, and what, if any, rights the individual has the capacity to continue to exercise.  The court must also determine whether any adequate alternatives to guardianship, such as a health-care surrogate, are available to protect the individual.  If the court finds that the person is incapacitated, and no adequate alternatives are available, it will then appoint a guardian for the incapacitated person.

A minor guardianship must be established when a child is going to receive more than $15,000 in settlement of a claim or as a result of a judgment in favor of the child.   These guardianships are established because the prospective ward is a child.  Therefore, the court is not required to appoint an examining committee prior to the appointment of a guardian for a child.

If an individual wishes to have a guardian of the property appointed and supervised by the court, and the individual is not incapacitated, a voluntary guardianship of the property is sometimes desirable.  For example, a person who believes that he or she is at risk of exploitation because of difficulty refusing requests for money from friends and relatives may benefit from a voluntary guardianship.    The susceptible individual would have the benefit of having a guardian being fully responsible for the individual’s finances, and the guardian would be held accountable by the court for performing his or her fiduciary duties properly.  Anyone may petition for the appointment of a voluntary guardian for himself or herself.

Guardianships can be plenary or limited, and the activities of the guardian are dependent on the type of guardianship established by the court.   A plenary guardianship is a full guardianship over the person and property of the ward, and the guardian is responsible for managing the ward’s care and finances.  A limited guardianship is one in which the guardian is responsible for specific aspects of the ward’s care, as delineated by the court.  

A limited guardian may be appointed as guardian of the person only or as guardian of the property only.  A guardian of the person  is responsible for making decisions about medical treatment, mental and personal care services, and the ward’s residence.  A guardian of the property is responsible for the ward’s finances and property,  and must file an inventory of the ward’s property with court, invest funds prudently, use assets to benefit the ward, and account for the property to the court on a yearly basis.  A limited guardian may also be appointed to manage both the person and property of the ward, with the ward retaining specific rights, such as the right to vote or the right to determine residence.