Guardianship is a legal process in the Probate Court that decides whether an individual is unable to care for himself or herself and needs a guardian to oversee the person’s personal affairs due to incapacity.
A conservatorship is a legal process in the Probate Court that decides if an individual needs someone to oversee his or her financial affairs due to incapacity. In both processes the court must decide if the person is incapacitated. Incapacity is when a person is unable to provide himself or herself with food, clothing, shelter, safety, or other care to such an extent that physical injury, illness or disease is likely to occur.
A guardian may be appointed for an individual in the following circumstances: (1) the person is adjudged to be incapacitated, or (2) the person is a minor and has no living parents or the parents are unable, unwilling, or unfit to care for the child. Further, any interested person can file to become the guardian of incapacitated person or minor child. Under most circumstances, a family member is petitioning the court to become the guardian.
Once a petition for guardianship is filed, the court appoints an attorney for the alleged incapacitated person or a guardian ad litem for a minor child. The incapacitated person has the right to a jury trial if he or she feels that he or she is not incapacitated and does not want someone to be appointed as guardian. At the hearing the person requesting to be guardian must prove to the court that the person is unable to care for himself or herself and unable to manage his or her personal and financial affairs. Further, if multiple people are requesting to become the guardian, each proposed guardian must prove to the court that he or she is the most suitable person for the responsibility of caring for the individual and his or her financial affairs.
Once the court appoints a guardian, the guardian has many duties and responsibilities. The guardian is required to provide for the incapacitated person’s wellbeing, healthcare, education, support, and maintenance. Further, the guardian must provide the Probate Court with a written report each year detailing the status of the incapacitated person. If a conservatorship was granted, an annual report must be filed in the Probate Court that details how the assets of the incapacitated person were used or invested. The annual reports are filed each year until the guardianship is dissolved.
A guardianship has many effects upon the incapacitated person’s rights. The incapacitated person loses the right to make his or her own medical decisions. The incapacitated person may no longer have the right to vote. The incapacitated person may not consent to marriage or make enforceable contracts. It is a serious legal process that one should not undertake lightly.
At the age of 18, a child is deemed to be a legal adult and can make his or her own decisions. Sometimes this presents a problem for parents who have mentally challenged or physically disabled children because the parent is no longer the decision-maker. At this point the parents may decide to petition the Probate Court for guardianship of their child to ensure his or her wellbeing. This is one example of why people choose to petition the court for guardianship.