We often encounter a loved one who is unable to manage his or her affairs or care for his or her person independently. If this person has granted a Durable Power of Attorney to someone he or she trusts, this situation can be handled relatively simply. However, in the absence of a Power of Attorney and if the individual lacks the capacity to grant one, decision-making authority for such an incapacitated person may be obtained by applying to a court for the appointment of a Guardian. A Guardian is an individual or institution such as a bank trust department appointed by the court to care for an incapacitated person.
The guardianship process is initiated by filing a petition with the court requesting the appointment of a Guardian. This petition is usually filed by a concerned relative or friend, or other interested party or organization such as a hospital, nursing home, or social service agency. The court then appoints a committee of two professionals, usually physicians, and a lay person to examine the person and report its findings to the court. The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A Guardian is usually appointed at the end of the incapacity hearing.
A Guardian who is given authority over any property of the ward will inventory the property, invest it prudently, use it for the ward's support, and account for it by filing detailed annual reports with the court. In addition, the Guardian must obtain court approval for certain financial transactions.
The Guardian of the ward's person may exercise those rights that have been removed from the ward and delegated to the Guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The Guardian of the person must also present to the court every year a detailed plan for the ward's care.
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