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For some people legal protection may be necessary even in adulthood. They may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or have some other condition preventing them from caring for themselves. In these cases, a guardianship may be created.
Guardians and Protected Persons
Guardianship, also known as conservatorship, is a legal arrangement that puts an individual, also known as a ward or protected person, under the supervision of a guardian, or custodian. There are two main types of guardianship: guardianship of the person and guardianship of the estate or property.
A guardian is typically a family member, friend, or fiduciary appointed by the court. A protected person can be an orphan or an adult who can no longer make sound decisions about his or her person or property. Additionally, a person may be placed under guardianship who is prone to fraud or undue external influence.
While guardianship does attempt to maintain the protected person’s independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual.
Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:
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Choosing residence
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Providing informed consent to medical treatment
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Making end-of-life decisions
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Making property transactions
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Getting a driver’s license
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Owning, possessing, or carrying a firearm or other weapon
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Contracting or filing law suits
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Marriage
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Voting
Right to Due Process
The protected person, under due process, is entitled to notice and. if physically and mentally capable, ability to attend all legal proceedings related to guardianship. In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.
Guardianship of the Person
Guardianship of the person often relegates the following responsibilities to the appointed guardian:
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Determining and maintaining residence
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Providing informed consent to and supervising medical treatment
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Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
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Making end-of-life decisions
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Paying debts and other expenses
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Maintaining the protected person’s autonomy as much as possible
The guardian may be required to report to the court about his or her activities on an annual basis.
Guardianship of the Estate or Property
Guardianship of the estate or property transfers the following responsibilities to the guardian:
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Organizing, gathering and safeguarding property and assets
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Arranging appraisals of property
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Managing income from assets
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Making appropriate payments
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Obtaining court approval prior to any sale of major assets
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Reporting to the court the estate’s status on a regular basis
Many guardianships are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.
Guardianship of Minors
Guardianships may also be used to protect the legal rights of a minor. In the event a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed. Unlike an adoption, under a guardianship, parents may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.
A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have a steady income, suffers from an illness, or is incarcerated. In most instances, parental approval is sought prior to any legal proceedings.
If you have a loved one who needs to have a guardian appointed, call (757) 340-3100. We will schedule a no cost, no obligation appointment so we can show you how we can help you through the process. |