What Is a Guardianship?

Guardianship is a legal action where the court deems an adult an incapacitated person and appoints someone, the guardian, to make decisions about the care and finances of the individual.

The guardianship process is started by a petition being filed with the court. For a person to be deemed incapacitated by the court, the petitioner must provide medical evidence of the individual’s incapacity.

To be found incapacitated, the court must determine that the individual’s ability to receive and evaluate information effectively, and to communicate decisions, is impaired to the point where they cannot manage finances or meet basic physical health and safety requirements.

After the petition is filed, the individual must receive written notice of the action and information about their right to counsel. A formal hearing is held where the alleged incapacitated person has the right to attend (unless a physician determines attendance could harm their welfare). Evidence is presented demonstrating incapacity, necessity of guardianship and lack of less restrictive alternatives. The court then decides whether to appoint a guardian and adjudicate the person incapacitated.

Types of Guardianship

The court can appoint a guardian of the person and/or a guardian of the estate. The guardian of the person makes decisions about living arrangements, safety, physical wellbeing and daily healthcare. The guardian of the estate manages finances and property.

Who May Serve as Guardian

Any qualified individual, corporate fiduciary, non-profit corporation or county agency may serve as guardian. Guardians face ongoing court oversight and must file annual reports, plus an inventory of assets when first appointed as guardian of the estate.

Alternatives to Guardianship

Guardianship should be a last resort with no less restrictive alternatives available. Most guardianships can be prevented through proper estate planning. A durable power of attorney offers greater flexibility than guardianship and typically involves no court involvement, making it an important estate planning document to prevent guardianship needs during incapacity.

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