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Guardianship of Incapacitated or Disabled Persons

A guardianship is a crucial legal tool that allows one person or entity to make decisions for another (the ward). Courts are tasked with establishing guardianships, and they typically appoint guardians in instances of incapacity or disability. Suppose, for example, that a person is put into a coma from a car accident. Unless that person has a durable power of attorney and medical directives already in place before the accident, the court will appoint a guardian to make both financial and non-financial decisions for the comatose person.

This is important because investments, real estate, etc. can lose their value over time if left unmanaged. There are also bills to pay – a guardian should make sure that excessive liabilities do not accrue during the period of incapacity.  

Disabilities and Guardianship

Mental and physical disability or incapacity can involve severe and long-term conditions that impose great limitations upon an individual's ability to take care of themselves, express themselves verbally, earn a living, and live independently of the care of others. Such a disability reflects the necessity for a combination of treatments and services.

Guardianships for physically or mentally disabled or incapacitated persons have, in recent decades, been understood to facilitate the independence and self-reliance of the ward. Guardianships are limited as much as is reasonable in order to allow wards to exercise as much control over their lives as possible while maintaining as much dignity and self-reliance as possible. The desires of the wards are given primary consideration. Also, wards are allowed to do as much of their own caregiving as is physically and mentally possible.

Guardian Powers

Guardians are granted only those powers necessary to accomplish for the ward what the ward cannot accomplish independently. These powers may include:

  • Assuring the availability and maintenance of care for the ward.
  • Making financial decisions for the ward.
  • Making medical decisions for the ward.
  • Making sure that educational and medical services are maintained and adequate.
  • Submitting updates to the court of the ward's condition. These court updates describe the ward's living situation, status of mental and physical health based upon medical examinations and official records, provide a list of services being received by the ward, describe services rendered by the guardian, account for the ward's monetary assets, and any other information necessary to submit to the court in order for it to assess the status of the ward and the guardian's duties.

Guardians aren’t expected to micromanage a ward’s life, since they’re not providing caretaking services. One way to think of it is as a provision of decision-making services. Guardians step in when necessary to make decisions and give consent to things that the wards don’t have the capability of on their own. This is the limit of their duties.

How Is a Guardian Chosen?

To be chosen, a guardian has to be qualified to serve. State qualifications differ, but in general, to be qualified, a guardian must be a legal adult (18 years of age) and cannot have a felony or gross misdemeanor record implicating dishonesty (forgery, bribery, etc.). The guardian must themselves not be incapacitated, of course.

The court will choose based on the expressed wishes of the ward – if the ward is able to express his or her wishes somewhat. If the ward is not able to express his or her wishes, then the court will make a determination based on pre-incapacity documents such as a durable power of attorney or a will, and if there’s no durable power of attorney available, then the courts typically prefer to appoint a spouse, parents, adult children, brothers, sisters, or other family members.

Making Your Wishes Known

If you’re concerned about potential disability or incapacity and having the court appoint a guardian for you – as opposed to selecting your own guardian candidate – then you should seek out a qualified estate planning attorney and execute a durable power of attorney and a duly probated will. These documents will guarantee that the persons you select, outside of some extenuating, disqualifying circumstance, will be there to take care of you in the event of some tragic accident or illness.

Next Steps
Contact a qualified family law attorney to make sure
your rights are protected.
(e.g., Chicago, IL or 60611)

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