Guardianship - Adult
ALTERNATIVES TO GUARDIANSHIP
Each of the following alternatives are available when a person still has the capability to understand the documents they are signing. If they no longer understand, it is too late to use these alternatives.
HEALTH CARE POWER OF ATTORNEY
Also called a patient advocate designation or a durable power of attorney for health care. Enables a person to name an agent to make his or her health care decisions when not capable or not competent to do so. Can include authority to withhold or to withdraw life support services.
A document directing that the patient not be resuscitated if the patient’s spontaneous respiration or circulation stop in a setting outside a nursing home, hospital, or mental health facility owned or operated by the Department of Community Health.
POWER OF ATTORNEY
A document signed by a competent person giving another person the power to manage some or all of his/her affairs. Should be drafted by an attorney as the powers may be very specific.
DURABLE POWER OF ATTORNEY
Remains valid even if the maker becomes disabled or incapacitated. Must contain language indicating that it is a durable power
Involves certain assets to be held by two or more persons and may entitle any of the owners to have control and management of the assets. Might apply to real estate, bank accounts, corporate stocks and mutual funds. Can involve the loss of sole control over the funds and can result in dishonest use of funds by the co-owner.
Expresses the desires of the maker about the management of his/her assets during his or her lifetime and when physically or mentally unable to manage the assets. Legal advice should be sought to set up a trust correctly.
When an individual no longer has the capacity to pursue any of the alternatives to guardianship, someone interested in that individual’s welfare can file a petition for guardianship of the alleged legally incapacitated individual. (PC625) A legally incapacitated individual is an adult the court finds to be so impaired by mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause that he or she lacks the understanding or capacity to make or communicate informed decisions.
The Court can appoint a full guardian to make all decisions for an individual, including treatment decisions and where the individual will live.
The court appointed guardian makes only those decisions that the court specifically sets out in a court order.
If an emergency exists, the judge may appoint a temporary guardian to serve until a hearing on a petition for a full or limited guardianship can be held. Emergency guardians are appointed only when a true emergency exists, such as a need for immediate medical treatment, and not simply to have authority to move the individual to a nursing home, etc.
All processes begin by filing a petition for appointment of a guardian with a $150 filing fee. A formal hearing is held after notice to the individual’s heirs (most often the spouse and children). A guardian ad litem is appointed to visit the individual and explain the guardianship proceedings, advise the individual of his rights, and to make recommendations to the court.