Guardianship is the legal term for when a court appoints someone to supervise the activities of another.
“Guardianship provides for the care of children or adults who cannot do so for themselves.“
Guardianships of adults are granted where the adult becomes incapable for him or herself to make decisions or manage financial affairs. Alzheimer’s Disease, senile dementia, stroke, mental illness, and organic brain ailments are only some of the medical causes leading to a guardianship. The adult is presumed competent, and the burden is on the petitioning person to demonstrate incapacity with medical testimony, financial records, and descriptions of the person’s recent activities that show they no longer can care for their own needs.
Any competent person can serve as guardian, but most often relatives fill the role. A person can nominate who their guardian should be by estate planning done while the person is competent. The guardian of an adult or a child owes a fiduciary responsibility to the person cared for, called the “ward.” The guardian must act for the ward’s best interests, and not for their own. The Probate Court supervises the guardian’s activities by monitoring yearly accounts that the guardian is required to submit, and by hearing motions on any contested matters during the pendency of the guardianship. Guardians of estates are required to post insurance bonds for the faithful execution of their duties, and can be personally liable for misusing the ward’s funds.
Far preferable and less costly than guardianship proceedings for adults is to plan for adult incompetency through estate planning using medical advance directives and financial powers of attorney while the adult is mentally competent to make these choices. Contact us about these planning tools to avoid the need for guardianship proceedings.