Guardianship

An arrangement whereby a court appoints a person to take care of another person or that person's property because the person cannot legally take care of him or herself.

Guardianship is the "default" plan. If you fail to plan in advance for how decisions will be made if you are incapacitated or incompetent, the court will appoint decision makers for you.

An advantage of having a Guardianship is that you have a court-appointed and court-supervised guardian taking care of you and your property.

Some of the disadvantages include a possible public proceeding, invasion of your personal and financial privacy, cost, and extensive time. Having a Guardianship takes away your basic rights and may cause problems in your family. The court decides who should take care of you and your property, which may not be a family member. This decision maker will be under ongoing supervision of the court.

Any person may petition the court for a Guardianship proceeding to determine whether or not you are incompetent. During this proceeding, you have a right to a lawyer as well as a right to a jury trial. You may undergo medical, psychological and social work evaluations. Once a hearing is held, you are found competent or incompetent. You may appeal an adverse decision.

The three types of Guardians are Guardian of the Estate, Guardian of the Person, and General Guardian. With proper planning, your personal, financial and health care decisions may be handled by the decision makers of your own selection. Proper planning includes Durable Powers of Attorney, Health Care Powers of Attorney, Living Wills and Authorizations to Consent for Health Care for Minors.

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