Boris Zerwann@123rf
Guardianship Alzheimer's
According to Black’s Law Dictionary, a guardian is “one who has the legal authority and duty to care for another’s person or property, esp. because of the other’s infancy, incapacity, or disability.” A guardian’s power over the other person (called the ward) is similar to that of a parent over a child.
If you have a parent or loved one with Alzheimer’s (or another disease that makes them mentally unable to handle their own affairs), you may need to seek a guardianship over your loved one. You will need a guardianship to consent to the ward receiving medical care. You will also need to be appointed legal guardian if you want access to your loved one’s bank accounts. If your relative is incapacitated and unable to handle their own money, then they may be vulnerable to con artists who take advantage of them. Thus, you may need to file for a guardianship in order to protect your relative.
This post discusses guardianship law as it exists in many states. However, because guardianship law is generally a matter of state law and is different in every state, you should seek a lawyer licensed in your state if you are interested in filing for guardianship.
Steps for Obtaining Guardianship
Generally, you need to file a petition in the court in the county where the prospective ward resides. When you file your petition, you will get a hearing date. You must provide notice of the hearing date to certain persons (determined by state law). Often, you need to give notice to the ward, the ward’s relatives, and any government agency providing services to the ward.
If there is an emergency, you may be able to obtain a temporary guardianship without giving notice. Generally, though, in an emergency guardianship, the court will set a review date; and you must give notice of the review date to all necessary parties. Also, in some emergency guardianships, the court will quickly set a hearing, but will require you to give notice if possible.
At the hearing, any person who receives notice of the guardianship has the right to object to the guardianship. If anyone objects to the guardianship, the judge will hold a trial and decide whether you should be appointed guardian or whether the objections are valid.
If there are no objections, the judge may appoint you guardian. However, the judge may first require you to present proof that the prospective ward is actually incapacitated. Different judges require different forms of proof, but, often, judges will require a statement form the ward’s doctor that a guardianship is necessary. Some judges will want to personally meet the prospective ward to determine whether the person is incapacitated.
Many states have laws that prohibit certain persons from acting as guardians. Depending on your state, you may not be allowed to act as guardian if:
- You have been convicted of certain crimes;
- You are not legally present in the United States;
- You have a conflict of interest that would prevent you from serving as guardian (for example, if you owe money to the ward);
- You have recently declared bankruptcy;
- You are unable to pay debts as they become due.
The process of becoming a guardian is very complicated, and few non-lawyers can handle it on their own. So, you should definitely retain a lawyer to represent you in a guardianship proceeding. Improperly drafted guardianship documents could cause serious harm to your loved one.
Powers and Duties of a Guardian
Typically, the judge will sign a court order, and the order will specify what powers you will have as guardian. The order may grant you guardianship over the ward’s “person,” meaning you can decide where the ward will live and make medical decisions for the ward. The order may grant you guardianship over the ward’s “property,” meaning that you can handle the ward’s financial affairs and other matters relating to property. Or, the order may grant you guardianship over both the ward’s person and property.
Some states will prohibit someone who has declared bankruptcy or is unable to pay debts as they become due from acting as guardian over a ward’s property. However, these states will allow such a person to become guardian over a ward’s person. A judge may also appoint you the “limited guardian,” which means you have control over only certain parts of a ward’s life.
If you are a guardian, you must act in the best interests of the ward and may not take advantage of the ward or use the ward’s assets for your own personal gain. If you do not act in the best interests of the ward, you may be civilly sued, or even criminally prosecuted. Many courts will require you to regularly file a report with the court; in this report, you must account for your activities as guardian.
Conclusion
If you have a loved one who cannot care for himself, becoming a guardian can be one of the most loving acts you can do. As a lawyer, guardianship cases are among my favorite types of cases to handle. I get to help others protect their family. If you need to gain a guardianship, speak to a lawyer in your area today.