Legal guardianship may be needed for an elderly person who suffers from dementia and can no longer care for themselves, but it is just as likely to be needed for an adult at any age who has been in an accident or suffers an illness leaving them unable to act on their own behalf. At any stage of life, guardianship can be a challenging and emotionally charged legal matter.
It is best to rely on an experienced attorney to properly secure guardianship. If the family is divided or if there is a person who is likely to challenge guardianship, there’s no room for error. The process of guardianship begins with filing a petition in the Probate and Family Court in the county where the incapacitated person lives.
A medical certificate or a clinical team report must be submitted from a physician attesting to the person’s incapacity. The medical certificate must be signed by a physician, psychologist, OR psychiatric nurse. The clinical team report must be signed by a physician, psychologist, AND social worker. Depending on how long the process takes, a follow-up medical certificate or clinical team report may be needed.
A court hearing takes place so the court can hear evidence regarding the proposed ward’s ability to act on its own behalf.
Just as filing a will with the court requires notification of family members, so does filing a petition for guardianship. The birth parents, if they are living, and all interested parties must be notified. This may include children, siblings, aunts, uncles, cousins, and others involved in the person’s life. You don’t have to be a blood relative to file a petition for guardianship, but the person’s relatives must be notified.
A person who is found to be incapacitated and in need of a guardian is known as a “ward.” The guardian is responsible for looking out for the best interests of the ward. The guardian is in charge of the ward’s personal life, making decisions about where they live, who they socialize with, where they work if they work, and also makes medical decisions on their behalf. The guardian needs to be mindful of the emotional and physical well-being of the ward, respecting their wishes and personal values.
The guardian is a fiduciary, meaning they have a legal obligation to put the best interests of the ward ahead of their own.
The type of guardianship is determined by the person’s level of capacity. If the person is completely incapacitated, a Full Guardianship (also known as general guardianship) is needed. The ward will not have any right to make decisions about their healthcare, support, education, or lifestyle.
A Limited Guardianship allows the ward to participate in some decision-making, depending on the extent of their capacity. It is also possible to obtain a Limited Guardianship for someone who can make medical and lifestyle decisions but who is incapable of managing their personal finances, for instance. In many cases, it’s preferred to limit the amount of decision-making given over to a guardian, if possible.
If a person does not wish to give up their self-autonomy, they can defend against guardianship in court. If a family member believes the appointed guardian is not looking out for their loved one’s best interest, they can also challenge the guardianship through the court.
If you have questions about guardianship, we invite you to call our office to discuss your family’s situation.