An unfortunate truth is that we do not keep all our faculties towards the end of life. Some adults are unable to make sound decisions for themselves, which is where adult guardianship or conservatorship becomes necessary. Adult guardianship is when a guardian ad litem is declared by a judge to be fit to make decisions regarding the person’s finances, medical care, and personal care, or both. Not having an appointed guardian could be a huge mistake which may lead to bad decisions that are not in line with the person’s well-being. If no one has already been appointed, a court will have to assign guardianship.
A person declared to make decisions based on the person’s medical and personal life is called a “conservator (or guardian) of the person.” A person declared to make decisions based on the person’s financial aspect is called “conservator (or guardian) of the estate.” If the person in question needs both, the judge would declare the same person as both. The decisions made by the conservator are backed by the court legally. The word conservatorship is used interchangeably with adult guardianship, and different states use one or the other.
Knowing when the guardianship of an adult might be necessary will help you make a confident step in the right decision for you and your loved one. To help give you an idea of when an adult guardianship is necessary, we will provide some examples. Consider filing for legal guardianship of your loved one has mental or physical impairment afflicted by:
And not only must the person be physically or mentally incapable of making important decisions for herself as with the examples above, but other outside factors would necessitate a legal guardianship. These outside factors would be that he or she has not already prepared the legal documents that cover decisions about personal and financial matters. Here is a list of outside circumstances, along with his or her incapabilities, that would prompt a legal guardianship:
To obtain guardianship of your loved one, you will need to file formal legal papers, after which you will have a court hearing in front of a judge. These formal documents must clearly emphasize his or her physical or mental impairments that cause the inability to make decisions. Family members and of course your loved one must be notified and given to opportunity to contest and file their paperwork in opposition.
To do all this, legal help is necessary. Choose a local lawyer that has elder law or conservatorship experience. To find the right one for you, contact the state bar association in your county, and ask for the lawyer referral service. This must be the county in which you or your loved one live. Another way to find a lawyer would be to contact the National Academy of Elder Law Attorneys and ask for a referral of an attorney in your area.
Here is the abridged version for the process of filing for adult guardianship, after which we will break down in detail:
Before starting the paperwork, be sure to know the types of guardianships to know which you are going for. It is also helpful at this stage to discuss with other family members in the decision-making process who would be the best person to be guardian, as well as which type of guardianship will be necessary. Figuring this out ahead of time will make the process smoother and reduce stress, not to mention a less expensive legal process. Get to know the different types of adult guardianships, decide which type may be necessary, and then agree on who is the best person for the job. Here are a few of the different adult guardianship titles you and your family members may be considering:
Emergency Guardianship: It usually takes several months to complete the process of obtaining guardianship for a disabled adult, which sometimes is too long in some cases. Emergency guardianship can be sought in limited circumstances in which the individual’s mental or physical health is at risk or an immediate decision must be made regarding their health or estate. This form of adult guardianship is temporary, sometimes lasting only 72 hours. The laws on emergency guardianship vary from state to state.
Guardianship of the Person: This form of adult guardianship requires the guardian to make decisions about the care and support of an elderly or incapacitated adult The best person for the job would probably be an adult child or sibling who lives close to the person. The guardianship duties would include making medical decisions, monitoring medical treatments, arranging professional interventions, ensuring healthy living conditions, and making the difficult end-of-life decisions. The appointed person may also be required to submit an annual report of any decisions made. All these duties should be done all while considering the person’s wishes and physical and financial needs. This guardianship lasts until the person passes away, or when the court decides guardianship is not needed anymore.
Guardianship of the Estate: For this form of guardianship, the person chosen should be someone who is competent in financial affairs and can handle substantial or complicated finances. If no family members are capable of making sound financial decisions, the judge can appoint a public officer or private conservator. The guardianship of the state would assume the responsibility of the incapacitated person’s personal property. The duties of this form of guardianship include preserving and protecting assets including bank accounts, distributing income, estate planning, and getting appraisals of the personal property. It is also in their duty to keep the court informed of the estate and any changes made. For instance, in some states the guardian must immediately provide a Proof of Blocked Account form, then after 60 days must submit an inventory and appraisal of the estate and asset valuation. A monthly budget and an annual accounting packet are sometimes required. Check the laws in your state to determine what will be required of you. Guardianship of the estate continues until the person passes away or the court decides a guardianship is no longer necessary.
Guardianship of the Person and Estate: This form of guardianship is the combination of the previous two forms. This guardian would have total control of the person’s financial, medical, and personal decisions. The appointed person will decide about his or her everyday care, handle administrative matters, and decide how to best spend the assets on long-term care or where to live. Some examples of administrative matters would include dealing with doctors, Medicare, insurance, or the long-term care facility he or she resides in. The guardian would apply for benefits, medical coverage, or pensions that an incapacitated person might be eligible for.
The guardian must keep clear records of any decisions that have been made on the person’s behalf. The court will require that these records are regularly reported to them, though different states have different requirements. A judge may even require the guardian to check in with the court before making any particularly important decisions, like when selling the person’s home, or transferring the person to any new place of living, especially if it is out of state.
Now that you’ve decided with your family members which type of guardianship will be necessary, you can obtain the applicable forms you will need to complete. In some states, you will need to complete a form acknowledging your duties. The forms used to gain guardianship all vary from state to state. However, all of them require the same basic information. Your lawyer will guide you through this process. You will pay for the correct forms to be drafted, or you can ask for legal advice to guide you through the process. It is possible to draw up your guardianship template as a low-cost solution to obtain guardianship. If you choose to do so, you must make sure the forms comply with state law and your state-specific court rules. To make sure that you get the right adult guardianship forms, visit your state’s legal aid office or the self-help section of the website for your county court. They sometimes have free adult guardianship documents you can use. Here are the major components of the adult guardianship forms:
Everyone Involved is Identified: This will include the full legal names of the disabled person, the person who is preparing the form, and the guardian or guardians who are being appointed. Any assets of the person should be listed, as well as the person’s date of birth and gender. Information about the appointed guardian or guardians should be included, such as their addresses, contact information, and the relationship to the incapacitated person.
The Time Period of Duties: You will need to specify what period of time the guardianship duties will be assumed. This will be especially necessary if the guardianship is temporary. Before adding in the dates, be sure to check what amount of time is allowed in your specific states. This is because maximum guardianship times can vary depending on what state you are in.
Guardian Responsibilities and Limitations: Explicitly state in detail what duties the guardian will and won’t be in charge of. It is especially important to know what he or she is not legally able to do so that they do not cross any lines that could hold them legally responsible. For instance, they could be held liable when making decisions regarding medications when they aren’t allowed to, which may cause damage to the affected person.
Explanation of Why the Person Needs a Guardian: The person must be proven incompetent, and thus unable to make their own decisions. This will be done in front of a judge, but the documents must explain why the appointment of a guardian is necessary (list any related health issues), why the person appointed should be named guardian, and who should be notified of the appointed guardian.
Witnesses, Signatures, and Notarization: Almost every state requires at least one neutral witness to the document’s signature and notarization. This witness or witnesses should have no personal gain regarding the appointment of guardianship. The form will be signed and dated by the proposed guardian. The rules for the signing and notarization of the document varies from state to state.
Be sure to make copies for yourself and all the parties involved. Then it is time to file. You can typically file your paperwork in one of two ways. You can mail the documents in, or you can file them online. In either case, you will need to send any payments necessary for the filing fee. Sometimes a fee is not needed. The fee for the guardianship of the estate could also depend on the estimated value of the assets of the estate. Check with your local laws to see what fee you will need to pay. It is possible to even waive the fee in some cases if you cannot afford it.
After successfully filing your adult guardianship forms, a copy of your petition must be served to anyone who must be notified. This would include relatives and any agencies that are affected by this change and have associated legal rights. This could be your responsibility to notify these affected parties. The guardianship process will be delayed if everyone is not properly notified. The people you serve could include the proposed protected person, their spouse, parents, children, siblings, grandparents, and older grandchildren. Any affected agencies could include the hospital or care facility the person is staying in, Medicaid, or office for Veteran’s benefits. Check the laws for your state on who specifically should be notified.
You will be notified by the court of your hearing date. Next will be your guardianship proceeding on your appointed court day. The probate court judge will review your guardianship case and determine the court order, stating whether or not the person in question is capable of decision-making. Sometimes it will be obvious to them, for example in the case of someone who is unconscious or semiconscious or has an advanced form of dementia. However, some people have physical or mental limitations that are not as obvious. In these cases, the judge will have to weigh opinions and options. Here are some examples of what might happen:
The guardianship will last as long as he or she lives unless specifically stated otherwise. However, if he or she regains her ability to make decisions, the guardianship can be ended. Additionally, a guardianship of the estate can be ended if there are no longer assets to deal with.
It is also possible for the guardian to change. This is possible if the guardian dies, moves away, or can no longer manage the duties. A judge could replace the guardian if he or she repeatedly makes bad decisions or neglects his duties. The change of guardianship would have to be requested by a family member or an interested person through a filing of paperwork.
The process of filing for adult guardianship can be costly, time-consuming, and painful for you, family members, and your loved one. However, if the incapacitated person has not completed a detailed durable power of attorney, living will, or medical directive, the process is necessary to ensure your loved one’s well-being. We hope that you now have a clearer idea of how to file for guardianship of your loved one. We here at CareAsOne wish you all the best in this difficult time.