Legal Guardianship of an Adult: Rights and Responsibilities
Once a person becomes a guardian, they should be aware of their responsibilities. Since the ward loses significant rights, gu...Read more
Upon determining that an adult cannot make personal or financial decisions, a state court can appoint a guardian: a competent individual with authority to make choices for the adult, such as where they live and what kind of care they receive.
While giving assistance and security, guardianship reduces an individual’s autonomy.
As this arrangement restricts a person’s rights, it is only appropriate when less restrictive methods, such as power of attorney or supported decision-making, are not available. Given the severe implications for individuals’ rights and freedoms, state courts oversee the appointment of a guardian and monitor how the guardian manages the protected person’s affairs.
No particular diagnosis necessitates guardianship. People require a guardian when a condition or incident renders them unable to manage their personal or financial affairs.
Some individuals with developmental or cognitive disabilities may lack the capacity to care for themselves independently. When children with severe disabilities reach adulthood, their parents often step in as guardians so they can continue helping their children.
Unlike a power of attorney, which an individual can execute without judicial oversight, courts control guardianship. While people can appoint an agent by completing a power of attorney, the court must approve guardianship.
Some people include provisions in their wills that nominate a trusted person as a guardian for themselves or others for whom they are responsible. While the court gives weight to individuals’ requests, ultimately, it makes the final decision.
Those who wish to become guardians must follow certain steps.
The legal community increasingly recognizes the importance of legal representation for alleged wards whose rights are at stake. Some jurisdictions, such as Oregon, provide court-appointed attorneys to allegedly incapacitated individuals without their own counsel.
In some cases, the adult with an alleged incapacity and their family members agree to the guardianship. If the court finds that the adult is incapacitated and the proposed guardian is suitable, it will issue an order appointing the guardian.
If the court determines that the proposed protected person can function independently, the court dismisses the guardianship. When the court finds that the adult requires care and oversight, but the ward or others object to the guardian, the court decides which individual(s) will assume the role.
When appointing the guardian, the judge will consider the incapacitated adult’s wishes and best interests, including the competence of the proposed guardian.
Two people can take on the role of co-guardians.
One person can step in if the first guardian cannot fulfill their responsibilities. Parents of an adult child with a disability could include their older child, a grandparent, or another trusted person as a successor guardian on the petition.
When a family member, friend, or another trusted person does not take on the role of guardian for an incapacitated adult, a professional or public guardian may step in.
An attorney can also help parents of adult children with special needs obtain guardianship. The lawyer can help secure a timely physician’s report, fulfill the notice requirement, draft and petition, and provide representation during hearings.
Speak to a special needs attorney near you to learn more about petitioning for guardianship of an adult child with a disability.