Probate & Guardianship

Adult guardianship is a court procedure during which a person (the ward) is found to be mentally incompetent and a guardian (or surrogate decision maker) is legally authorized to make the ward's decisions.  There are two types of guardianship:

• Guardianship of the person authorizes the guardian to make decisions regarding health care and living arrangements.
• Conservatorship of the estate authorizes the guardian to make financial decisions.

The need for guardianship has continued to increase as more people are living longer and are no longer able to make their own decisions.

A guardian does not have absolute power over his/her ward in that there are many decisions that cannot be made without specific court approval.  For instance, if a guardian wants to place a ward in a nursing home or sell a ward's home, the guardian must go back to the court to get the judge's permission.  Guardians are required to file periodic written reports with the judge.  Guardians are required to use substituted judgment when making decisions.  That is, guardians are required to do what the ward would have wanted.  In cases  where guardians do not know what the ward would have wanted, they are required to do what is in the ward's best interests.

Moreover, anyone who feels that a ward is not being treated properly can call or write the judge and the guardian will be required to return to court and explain his/her actions.  The judge has the power to terminate the guardianship at any time in cases where the ward is being mistreated by the guardian or the ward has regained his/her decision-making capacity.

Guardianship is a very drastic legal remedy and should only be used when absolutely necessary.  If a person has drafted a power of attorney, there is no need to appoint a guardian.  In fact, the court has no authority to appoint a guardian, except in cases where it has been proven that the agent is abusing his/her authority under the power of attorney.