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FAQ - Guardianships


What is a Guardianship?

A court ordered relationship in which the guardian acts on behalf of the ward.

Terminology:

Guardian – an adult person(s) appointed by the Probate Court to act on behalf of the disabled person.

Ward – a disabled person (incompetent) for whom the guardianship is established.

 

How do I know if a guardianship should be established?

The person for whom the guardianship is being considered is mentally impaired as a result of a mental or physical illness or disability, or mental retardation, such that the person is incapable of taking proper care of the person’s self or property.

 

What type of Guardianship should be established?

Guardianship of the Person – a relationship where the guardian controls and protects the personal needs of the ward.

Guardianship of the Estate – a relationship where the guardian controls and protects the assets of the ward.

These are the two main types of Guardianships. Either, or both, may be established depending on the circumstances.

 

How is a Guardianship established?

An application is filed in the Probate Court of the county where the proposed ward lives. A filing fee is paid and the proposed guardian is fingerprinted for a criminal background check. The Probate Court investigator then visits the proposed ward, gives notice of the hearing, and makes an independent assessment regarding the need for the guardianship. A hearing is held before the Probate Judge or Magistrate at which time a determination will be made as to the necessity for the guardianship and the suitability of the applicant.

 

Are there Alternatives to a Guardianship?

A guardianship is not always necessary (or recommended) in every case of a mentally disabled adult. Incompetence must be shown before a guardianship can be established.

Social Security payments made to a disabled adult may be paid to a designated payee on behalf of the recipient, and are not controlled by a guardianship.

Where mental disability does not rise to the level of incompetence, a Health Care Power of Attorney should be signed by the adult person. The power names an agent to make health care decisions for the adult where he or she is unable to do so. In addition, a Financial Power of Attorney should be signed to allow the agent to help manage financial assets.

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