When is Guardianship necessary?
Guardianship, also, referred to as conservatorship, is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.
How do you Remove or Replace of a Guardian?
A petition asking the court to review the guardianship can be filed in the clerk of court’s office by the incapacitated person, the incapacitated person’s attorney, the incapacitated person’s family, or any concerned party. This petition should simply state the reasons a review is being requested. It is strongly recommended that the petitioner seek legal assistance when considering whether to file such a petition. There may be quicker, more effective, and/or less costly remedies available, such as writing a letter to the guardian or asking an ombudsman or other advocate to intervene with the guardian.
The court may order a hearing at which the party bringing the petition presents evidence. At the conclusion of the evidence, the court may order the guardian to consider or pursue a different course of action, be more responsive to the needs of the incapacitated person, file timely reports or accountings, or the court may remove and replace the guardian. Where it can be shown that the incapacitated person has regained the capacity to make decisions in some or all areas, the court may dismiss or modify the guardianship.
What are the Duties of a Guardianship of the Estate?
When the court appoints a guardian of the estate, the guardian is assigned the following responsibilities:
- Marshall and protect assets
- Obtain appraisals of property
- Protect property and assets from loss
- Receive income for the estate
- Make appropriate disbursements
- Obtain court approval prior to selling any asset
- Report to the court or estate status
What are the Duties of a Guardianship of the Person?
When the court appoints a guardian of the person, the guardian may have the following responsibilities:
- Determine and monitor residence.
- Consent to and monitor medical treatment.
- Consent and monitor non-medical services such as education and counseling.
- Consent and release of confidential information.
- Make end-of-life decisions.
- Act as representative payee.
- Maximize independence in least restrictive manner.
- Report to the court about the guardianship status at least annually, unless a different length of time is specified by the court.
What Rights do all Individuals Subject to Guardianship have?
In general, the incapacitated person keeps all legal and civil rights guaranteed to all residents under the states’ and the United States’ Constitution, except those rights which the court grants to the guardian.
These rights include, but are not limited to:
- The right to be treated with dignity and respect.
- The right to privacy, which includes the right to privacy of the body, and the right to private, and uncensored communication with others by mail, telephone, or personal visits.
- The right to exercise control over all aspects of life that the court has not delegated to the guardian.
- The right to appropriate services suited to the incapacitated person’s needs and conditions, including mental health services.
- The right to have the guardian consider the incapacitated person’s personal desires, preferences, and opinions.
- The right to safe, sanitary, and humane living conditions within the least restrictive environment that meets the incapacitated person’s needs.
- The right to procreate.
- The right to marry.
- The right to equal treatment under the law, regardless of race, religion, creed, sex, age, marital status, sexual orientation, or political affiliations.
- The right to have explanations of any medical procedures or treatment. This includes information about the benefits, risks, and side effects of the treatment, and any alternative procedures or medications available.
- The right to have personal information kept confidential. This may include withholding certain information the incapacitated person may not want his or her family to know.
- The right to review personal records, including medical, financial, and treatment records.
- The right to speak privately with an attorney, ombudsman, or other advocate.
- The right to petition the court to modify or terminate the guardianship. This includes the right to meet privately with an attorney or other advocate to assist with this legal procedure.
- The right to bring a grievance against the guardian, request the court to review the guardian’s actions, request removal and replacement of the guardian, or request that the court restore rights if it can be shown that the incapacitated person has regained capacity to make some or all decisions. The guardian also has a responsibility to request that the incapacitated person’s rights be restored when there is evidence that the incapacitated person has regained capacity.
What is the Difference Between the "Substituted Judgement" and "Best Interest" Standard?
“Substituted Judgment” is the principle of decision making that requires implementation of the course of action which comports with the incapacitated person’s wishes expressed prior to the appointment of the guardian, provided the incapacitated person was capable of expressing his or her wishes relevant to the matter at issue and reliable evidence of these wishes remains. The incapacitated person’s current opinions and desires shall be considered and may be relevant to a determination of the incapacitated person’s views prior to the appointment of the guardian.
The principle of “Substituted Judgment” is considered to be the manner in which the autonomy, values, beliefs and preferences of the incapacitated person are best protected.
Utilizing this principle, the guardian attempts to learn as much as possible about the lifestyle, behaviors, preferences, and decisions made by the incapacitated person prior to his or her incapacity. Taking these factors into careful consideration, the guardian makes a decision that would as closely as possible reflect what the incapacitated person would have decided if he or she were capable of making the decision.
The “Best Interest” principle of decision-making is not based upon the incapacitated person’s wishes, but on what a reasonable person would do after considering all the options and alternatives and their potential risks, side effects and dangers. When making a decision under the “Best Interest” principle, the guardian must consider whether the option chosen is the least intrusive and least restrictive, and offers the incapacitated person the best opportunity for a “normal” life. It may be necessary for the guardian to obtain formal evaluations of the incapacitated person and/or seek expert advice from medical and financial professionals or from special ethics committees.
We invite you to browse these websites for information on professional organizations that serve many individuals who may require guardianship.
While Able Guardianship Services may hold memberships with these organizations, we do not specifically endorse these organizations.