A BRIEF REVIEW OF GUARDIANSHIP
© 2006 Jeffrey H. Minde, Esq.
An important issue for parents and family members frequently handled by this office involves the duties and responsibilities of being a Guardian.
Many people assume that because their child has a disability they are automatically the childís legal Guardian. However, every person over the age of eighteen is presumed to have the legal rights of an adult no matter what their abilities.
In order to become someoneís Guardian a parent or sibling must go to Court and petition to become responsible for that person. They must demonstrate to the Court that the disabled person is incapacitated---that they are unable to act responsibly on their own behalf.
Merely setting up a Trust, becoming a Trustee, becoming a Power of Attorney, or being someoneís Representative Payee for Social Security purposes does not make you a Guardian even if you may have effective control of the disabled personís finances and provide for all their needs.
This can be problematic. A legal adult unable to make effective decisions may be in a bind when an-otherwise responsible individual is advised that the disabled individual must make a potentially risky decision---Medical or otherwise.
For high-functioning and neurotypical persons with disabilities frequently a Health Care Surrogate and Durable Power of Attorney are all that is needed to ensure that their interests are protected during periods of difficulty.
There are several types of Guardianship. If you are contemplating establishing a Guardianship you need to discuss the specific details of your situation with your Attorney to determine what form of Guardianship is most appropriate.
It is important to note that the terminology for Guardianship may vary from State to State, and the application procedures may vary from County to County. Your Attorney will help guide you through this sometimes confusing process.
In brief, there are three classes of Guardianship. They are Guardianship of the Person, Guardianship of the Property, and Guardianship of the Person and Property.
Guardianship of the Person allows the Guardian to make decisions on behalf of the Ward (the incapacitated person) in regard to such things as his residence, his medical treatment, his leisure activities, his employment, and his daily routines---in short, in virtually all areas of the Wardís life.
Guardianship of the Property is more limited. It allows the Guardian the discretion to manage only the Wardís financial affairs.
Guardianship of the Person and Property combines the power of fiscal and personal decisionmaking. It is the most common form of Guardianship for the obvious reason that an incapacitated person who cannot make personal decisions almost always cannot make financial decisions.
Guardianship may also be Plenary; it may be Partial or Limited or it may be in a specialized form known as Guardian Advocacy.
Plenary Guardianship is total. The Ward retains no rights whatsoever.
Partial Guardianship (Limited Guardianship) is, as its name implies, limited. The Ward retains some rights. Often Guardians prefer to allow Wards to retain the right to vote under the logical considerations that voting is empowering to the person, and that, in any case, an incapacitated personís choices in this area can be no better or no worse than anyone elseís. Other rights may also be retained according to a listing included in the Guardianship petition.
Whether Plenary or Partial (Limited), these forms of Guardianship usually require Court hearings, including a determination of incapacity by the Court,
Guardian Advocacy is a specialized form of Guardianship for the developmentally disabled in Florida and several other States. It does not require the Court to make a determination of incapacity. It may be voluntary or involuntary.
In a voluntary Guardian Advocacy, the disabled person himself acts as the petitioner and voluntarily surrenders some or all of his rights to a trusted person (generally a parent). Due to the voluntary nature of the petition, Courts often waive formal hearings for this type of Guardian Advocacy.
In an involuntary Guardian Advocacy, the parent or Guardian petitioner files on behalf of the Ward, Generally, the Courts require hearings on this type of petition.
The kind of Guardianship you require is dependent on the Wardís functional capacity.
There are periodic reporting requirements (financial and otherwise) in most Guardianships. A bond may be required. Some jurisdictions may require the Guardian to be fingerprinted or to have a background check. There are usually limits on who can be Guardian. For example, a convicted felon usually cannot serve as a Guardian.