Trusts and Estates

Guardianship FAQ

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Q: How do I begin the process to be appointed a guardian?

  • A: In most states, such as Florida, the person who wants to become a guardian must file a petition asking the court to determine incapacity and appoint a guardian. Guardianship issues are often determined in family or probate court. Call your county court to find out the procedures in your area

    Not everyone hires an attorney, but it's usually the safest and smartest thing to do. Guardianship law is complex and changes quickly, and a lawyer can help you understand the requirements and rules.

Q: How long does it take a court to grant guardianship?

  • A:It depends on the state, but it's not usually a long, drawn-out process. In many states, permanent guardianship can be granted in a month if all goes well and no one contests it. Many states also have laws that allow temporary and emergency guardians in the event of a medical or financial emergency.

Q: I'd like to be my aunt's guardian, but I don't have a lot of money. Will I have to pay her expenses?

  • A:The guardian never has to use his or her own money to take care of the ward. Instead, the guardian uses the ward's money to take care of the ward. However, it gets tricky if the ward doesn't have enough money or income to cover expenses -- and that is when family members often end up using their own resources.

Q: My grandmother's guardian isn't taking very good care of her and no longer lets me visit. What can I do?

  • A:If it's impossible to settle the dispute with your aunt, you can go to court to ask the judge to either relinquish your aunt's rights as guardian or order your aunt to allow you more visits with your grandmother. The court will make a decision based on what's in your grandmother's best interest.

    Asking the court to help will require your aunt to explain her actions. It's possible she has (what she believes to be) a good reason for limiting your visits. It will be the courts job to decide if she is making a good decision. And if she's not, the court can require change.

    It is especially important to get help if you suspect that your aunt is not treating your grandmother in her best interest. If you suspect abuse, report it to your county's adult protective services or the police.

Q: What does the guardian have to do?

  • A:A guardian makes all legal decisions for the incapacitated person, who's legally called a ward. A guardian must pay the bills, manage the person's property, decide where the person lives and make medical decisions. A guardian can also decide whom the ward associates with and how the ward can spend their money. That's why it's important that the guardian is trustworthy and always considers the ward's best interests.

    That said, guardians do not have free rein to do whatever they want. The court supervises guardians and reviews their decisions. Also, in many states, the court -- not the guardian -- will make certain decisions about medical treatment, such as shock treatments or medications with serious permanent side effects.

Q: What happens if someone needs a guardian but has little money and there's no family member or friend who can do it?

  • A:In some states, the court will appoint a public guardian, usually a state-funded agency, to care for the person. However other states, like Massachusetts, don't have an agency to address this issue, or they provide provide public guardianship only in certain areas of the state. This leaves many at-risk Americans in need of services.

    While, some charitable organizations provide these types of services, and professional guardians and attorneys sometimes serve as guardians pro bono (for free), this remains an important problem for many states to resolve.

Q: What is a guardian?

  • A: A guardian is a court-appointed adult who takes care of a person who is unable to take care of his- or herself. The person the guardian takes care of is called a "ward."
  • When a court appoints a guardian to take care of an adult, it is usually because the ward has physical or mental disabilities that limit the person's ability for self-care. Courts also appoint guardians for children whose parents can no longer care for them. Often a court-appointed guardian is a relative, spouse, or friend. But a guardian can also be a lawyer, a professional guardian, a private organization, or state-run agency. The court makes a decision based on what is best for the ward.

Q: What is a limited guardianship?

  • A:A limited guardianship restricts the power of a guardian, allowing the individual to retain some legal rights and freedoms. A limited guardianship can work if the ward can still make some decisions for himself. For example, a person may be capable of living on his own and can manage his own money, but isn't able to make his own medical decisions.

Q: What's the difference between a conservator and a guardian?

  • A:A court appointed conservator manages only finances, while a guardian manages all of the decisions in the ward's life.
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