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Establishing & Terminating Guardianships

Establishing & Terminating Guardianships

Overview

A guardian is appointed by the court to make personal and/or financial decisions for a minor or for an adult with mental/physical disabilities. The person subject to the guardianship is legally called a “ward.” Any adult may file a petition with the court to determine another person’s incapacity, setting forth the factual information upon which they base their belief that the person is incapacitated. The court then appoints a committee of three members, usually two physicians and another person who by knowledge, skill, training or education can form an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court. If the examining committee finds the person is unable to exercise certain rights, however, the court holds a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are less restrictive alternatives to guardianship—a power of attorney or health care surrogate— that adequately address the person’s needs.

To terminate a guardianship, the Ward’s capacity can be restored, the Ward’s legal residence or domicile can be changed, the guardian can resign or be removed, the Ward’s assets can be used up, a Minor could reach the age of majority or the Ward cannot be found. When a Minor has become 18 years old, a person has terminated a voluntary guardianship, has been restored to capacity, has had all rights restored, a Ward has died, when the guardian has been unable to locate the ward after diligent search, or, for a guardian of the property, when the property subject to the guardianship has been exhausted, the guardian shall file a petition for discharge.  Discharge of any guardian of the property requires the filing of an accounting and proof that funds were used for the benefit solely of the Ward.

Fees and costs of a guardianship are often paid from the assets of the incapacitated person.  This can only occur after notice to the proper parties and with Court approval.

A family member can be appointed to act as a guardian and can be paid to act in that role from the incapacitated person’s assets. 

No guardian is liable for the acts of the Ward unless they have been negligent in their management of the Ward.