Guardianship

• A guardianship is a court approved decision that gives one person the legal authority to care for and make some decisions for another person.
• The person authorized to make the decisions is the guardian.
• The person receiving assistance is the protected person.

A court may appoint a guardian for an adult if it finds two things:

• The appointment of a guardian is in their best interest.
• The adult does not have the decision-making capacity to care for their own safety or the adult can’t provide for their own necessities like food, shelter, clothing, or medical care, and

Every guardianship order from a judge should be specific to the needs of the protected person involved. Some of the powers a guardian may be granted include:

• The ability to make decisions about the protected person’s care, maintenance, health, education, welfare, and safety
• Establish the protected person’s permanent residence
• Take care of the protected person’s personal property and animals
• Assist the protected person with self-reliance and independence
• Consent to and arrange health care treatment and other services
• Consent to and arrange vocational and educational services
• Facilitate supportive relationships and interactions between the protected person and family members and other significant persons
• Place reasonable restrictions on communication with others

A guardian may also have additional powers only if approved by the court.

These include:

• Transferring the protected person to a nursing home or other facility
• Consenting to the withdrawal of life-sustaining procedures
• Consenting to the sterilization of the protected person
• Consenting to an abortion on the protected person
• Denying any interaction between the protected person and another person

In order for a protected person to have a guardian specific documents must be filed with the court.

• First, a Petition is filed. A Petition is the legal document that asks the court to take action.
• A person with an interest in the well-being of another adult will file a Petition with the court
• A person who wants a guardianship for themselves may also file a Petition with the court.
• Next, after the petition is filed, the person who may be the protected person will get a copy of the petition telling them they have 20 days to file an Answer.
• An Answer is a response to the Petition. The Answer should state whether the person agrees or denies with the statements in the Petition.
• After the Petition and Answer are received there is a hearing.
• The court will set the time and place for the hearing. It is usually 20 or more days after notice is given to the respondent (potential protected person)
• At the hearing, the court will consider the reasons why the petitioner (person who filed the petition) believes a guardianship is needed.
• The court will also consider any evidence that the proposed guardian will not be a good guardian for the respondent.

Sometimes the parties involved can solve the question of whether or not a person needs a guardian outside of a court hearing. This can be through a process called Mediation. Mediation involves bringing in a neutral third party to help facilitate a discussion to see if an agreement can be reached without a court hearing.

• One of the parties may request mediation or the court may order a mediation on its own. The parties are not required to reach agreement but must attend and participate in good faith.
• Mediation can be waived if the case involves domestic or elder abuse.