However, for some adults, reaching the age of maturity doesn't have the same repercussions as others. This is because some individuals, despite technically reaching the age of adulthood, are incapable of making their own decisions due to a physical or mental condition. Such a person requires a guardian.
What Is Guardianship?
Guardianship refers to a court-ordered arrangement where one person is given the legal authority to make decisions on behalf of another person, also known as the ‘ward.' This is applicable if the ward is found to be either physically or mentally incapacitated. The guardian has the power to make decisions in the areas specified by the court. However, there are varying degrees of guardianship:
Limited Guardian: This person makes decisions only in specific matters, such as medical care. Limited guardianship may be appropriate if the disabled person can make certain decisions on his/her own.
General Guardian: This person has a higher decision-making authority over the ward. Hiring a general guardian is the chosen route for wards with significant intellectual disability or mental illness, which greatly affects their ability to make important decisions.
That said, even minors can require a guardian. According to a Jacksonville guardianship lawyer, if a child's parents die, become incapacitated, or if a child receives inheritance or insurance policy money that exceeds $15,000, the court is required to appoint a guardian for the child's protection.
What Qualifies Someone as Ward?
According to the National Caregivers Library, in order to be considered incapacitated, the ward must suffer from any of the following:
- Conditions related to stroke or old age
- Severe mental illness
- Brain injury
- Intellectual disability
However, these conditions are not enough to classify a person as mentally incapacitated. The ward's ability to make an informed decision is also taken into consideration. Further, the judge looks at the possibility of the person being exposed to certain risks if left to manage his/her personal affairs without a guardian.
A few questions to ask yourself to decide whether or not your loved one can make rational decisions (and therefore, need some degree of guardianship) are:
Do they understand the reason(s) behind a decision?
Do they understand the options available to them when making decisions?
Do they understand the concept of consequences and how it relates to decision-making?
If your loved one can understand all the above, can they identify an appropriate person to whom to inform their decision?
A guardian is legally responsible for the welfare of the ward and has the right to make decisions on his/her behalf. However, guardianship is recommended only if other less restrictive alternatives have not been effective. These methods include:
Power of attorney contracts
Conservatorship: Although a conservator is responsible for managing a ward's finances including the income and assets, they have no authority to make personal decisions, such as those related to medication or education.
In case the ward is able to make informed decisions, then guardianship can be avoided if:
- A living trust is established, in which the trustee can manage assets and there is no need for a guardian of the estate
- A durable healthcare power of attorney exists
- A durable power of attorney to manage the individual's assets exists
- A durable power of attorney enables a ‘principal,' in this case the ward, to appoint an ‘agent,' who can be a friend, a relative, or someone they trust to handle responsibilities related to the ward's health, legal, and financial matters.
What Is the Guardian's Role?
- The responsibilities of a guardian include:
- Managing the ward's income and/or property
- Admitting the ward to a hospital as and when required
- Making travel plans and living arrangements for the ward
- Making education decisions for the ward.
- Deciding where to gift the ward's money (if applicable)
- Initiating lawsuits as well as settling and defending the ward in lawsuits
- Making the ward's will
- Paying and collecting debts on the ward's behalf
Choosing the right guardian for a ward is an important decision. A guardian's role is all-encompassing – one which can't be taken lightly. Before deciding to hire a guardian, it should be legally established that the ward is not capable of making his/her own decisions. It is best to try other legal alternatives before going down the guardianship path.
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