Understanding the Guardianship Role

Posted on the April 20th, 2013 under Legal Guides by admin

A guardian is someone who is placed in charge of certain details such as financial assets, medical treatment and other needed decisions when someone can no longer make those decisions for him or herself. Guardianship is often required in the event of a medical crisis when a patient may be comatose or otherwise no able to attend to their financial obligations or choose their own medical treatment.

It is important that consumers know when guardianship may be necessary but also that establishing this guardianship may limit their rights in some ways. Before choosing a guardian, it is essential that all options are explored. When courts appoint guardians, many rights may be completely eliminated. Rights like consenting to medical treatment, making decisions for end of life care, determining residence, managing or selling property, filing lawsuits, voting and even getting married can all be eliminated when the courts appoint legal guardians. Assets that belong to the person who is incapacitated will remain in the legal possession of that person. The guardian does not gain possession of those assets but he or she can act on the incapacitated person’s behalf when managing those assets but guardianship is restricted to the order of the court. The guardian cannot do anything that is not outlined in the court order.

When a guardian is appointed by a court, he or she will have the responsibility of determining where the incapacitated person will reside and they will monitor that residence. They are also responsible for protecting all of that person’s assets, handling the income and finances for that person and providing consent for medical treatment as well as making decisions regarding end of life. Guardianship is not always automatically granted to a family member or friend. In some court appointed cases, professional guardians are used so that certain tasks can be accomplished like hiring a caretaker for the incapacitated person.

In many cases, the guardian only has control until the rights removed by the court are once again restored. In some instances however, a court appointed guardian remains until the death of that incapacitated person. Each case is different and no matter what the circumstances regarding the case, an annual review is performed to asset the continued need for guardianship. If no guardian is found to be needed, guardianship is terminated.

There are a few alternatives to a court appointed guardian and these can include living wills, durable powers of attorney for things like healthcare and property, joint checking accounts, healthcare surrogacy and others. It is always best to discuss the need for guardianship with an attorney. An estate planning attorney will be able to advise on whether or not guardianship is the best way to protect assets. It is essential that anyone facing guardianship know his or her rights and the options that are available as alternatives to this course. An estate planning attorney will be able to provide you with more information about the guardianship role and help you to determine if an alternate option is a better choice.

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