Incapacity And Guardianship

Incapacity and Guardianship

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Incapacity refers to an inability to effectively exercise one’s rights on one’s own behalf. Guardianship is the appointment of one person, called the “Guardian”, to exercise the rights of another person who is incapacitated, called the “Ward”.

How can you tell if a person is “incapacitated”?

There are several kinds of Incapacity, not just the common image of an elderly person afflicted by dementia.  We are all Incapacitated to some extent until we reach age eighteen (18) and acquire the legal right to contract on our own behalf.  A person is Incapacitated when they are unable to effectively exercise one or more of their own rights on their own behalf.  Some of the more common varieties of Incapacity include:

• Dementia - Most often seen in the elderly, this is actually a broad category of disorders including Alzheimer’s, Lewy Body, Parkinson’s and Vascular Dementia, caused by a stroke or TIAs.

• Brain Injury - Trauma to the head, anoxia (lack of oxygen) or other medical complications sometimes result in injuries to the brain which can render a person of any age Incapacitated.

• Developmental Disability - Autism, Spina bifida, CP, Prader Willi Syndrome or any childhood diagnosis accompanied by retardation may result in a need for assistance in the exercise of some rights.

• Youth – Persons under age eighteen (18) need a Guardian to exercise their property rights if they acquire property of significant value, need to file a lawsuit or wish to enter into a binding contract.

Do all Incapacitated persons need a Guardianship?

Though an Incapacitated person almost surely needs assistance safeguarding themselves and their property, by law Guardianship is actually the last alternative that should be considered.  In fact, when someone has been determined to be Incapacitated the Court must determine whether any less restrictive alternative is available which could adequately protect the person.  If you feel someone you care about needs protection consider the following:

• If the person may still have capacity…

    • They may be able to avoid guardianship entirely by appointing trusted relatives or friends to act on their behalf
      as agents under a Power of Attorney or Health Care Surrogate.

    • But would prefer the Court supervise their care, they may still avoid much of the guardianship process by establishing
      a Voluntary Guardianship on their own behalf.

• If the person no longer has capacity…

    • But has signed estate planning documents, only a Determination of Incapacity is needed.

    • And has never signed estate planning documents then a Guardianship may be unavoidable.

Are all Guardianships the same?

There are several kinds of Guardianship, each designed to address the specific needs of a different kind of Incapacity.  The more common kinds of Guardianship include:

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How complicated is Guardianship?

The initial stages of a Guardianship usually require four months to complete.  That timeframe and the complexity of the case vary based on several factors, including whether the case is:
 • Contested or Uncontested
 • Plenary or Limited
 • Requested on a Emergency Temporary basis or within the standard schedule

However, the resulting Guardianship lasts until the Ward’s death unless the Ward regains adequate capacity to resume control of their own rights.  Guardians serve for the duration of the Guardianship or until the Guardian’s resignation, removal or death.  Usually a Guardian’s ongoing responsibilities become routine and are quite manageable, but as a Ward encounters life’s complications their Guardian’s role can become more complex. 

Who usually is appointed to serve as Guardian?

The person appointed to exercise a Ward’s rights (referred to as the “Guardian”) is often the Ward’s spouse, an adult child or another close relative.  Regardless of their relationship to the Ward, all proposed Guardians must pass a thorough background check.  When necessary, the Court may appoint a professional guardian who serves numerous Wards for a nominal hourly fee.