About Guardianships

When do you require a Guardian?

Every person is presumed competent, unless that person is found by a court to lack the capacity to govern his or her affairs. Legal incapacity means that a person is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, etc., to the extent that you lack sufficient understanding to make or communicate responsible decisions concerning one's legal, medical and daily affairs. A declaration of incapacity by a Court means that a third party (Guardian) is appointed to make decisions. This may be a family member, but it does not have to be. Sometimes family conflicts exist, so much so that a third party stranger is a more preferable candidate as Guardian than one of the family members.

A guardianship is usually necessitated because a person does not have the proper estate planning documents in place appointing a third party to act on his or her behalf. These documents including a Power of Attorney to handle finances and what is commonly referred to as a Living Will to make medical decisions. Sometimes, guardianships are commenced because the incapacitated person has been financially taken advantage of by some third party.

In order to establish a person as being incapacitated, a Complaint must be filed with the Court in the county where the alleged incapacitated person lives. The Complaint must be accompanied by two independent doctor's affidavits stating that in the opinion of the physician, the person is unable to govern his or her affairs based on a specific diagnosis. The Court appoints an independent attorney to represent the alleged incapacitated person so his or her concerns regarding the Guardianship Complaint can be heard by the Court.

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