Guardianship of Minors and Disabled Persons

Dealing with a minor or a loved one who is mentally incapacitated can be stressful and sometimes overwhelming. This experience can be all the more challenging when it is necessary to seek the intervention of a court to protect the personal and financial health of a loved one who is unable to make decisions or care for themself. Our attorneys and staff work closely with our clients to navigate the legal and emotional landscape for those who seek to establish or to challenge a court-appointed guardianship.

A court-appointed guardianship is a protective relationship established by a court on behalf of a minor or mentally incapacitated individual. In a guardianship proceeding, a court designates a guardian to protect the welfare and rights of an individual who is not capable of managing their own healthcare decisions and/or financial affairs. The guardian is vested with the authority to make medical and/or financial decisions on behalf of the incapacitated individual. In most cases, the guardian has the same duties, rights, and powers over the ward as a parent would have over a minor child. The guardian is required to refrain from self-interest and act only in the best interest of the ward. In the case of an incapacitated adult, this means acting with substituted judgment as a surrogate decision maker for the ward. Put another way, the guardian bases decisions on what the ward would have chosen if not under a disability, not what the guardian would choose personally. A guardian’s activities are overseen by a court and guardians are required to provide detailed reports to the court on an annual basis.

Several challenging scenarios may arise that result in the need to attain legal guardianship. For example, guardianship may be needed when a child with special needs turns 18 years old, when an adult loses the capacity to make personal decisions due to accident or substance abuse, or when a minor child receives an inheritance or legal settlement required to be managed by a court. However, the most common need for guardianship arises when a previously-competent older adult loses the capacity to make personal decisions due to dementia or other age-related illness. A situation may also arise wherein there is evidence that an individual acting as a caregiver or an agent is abusing their authority, requiring court intervention to prevent further abuse.

It is important to talk to an experienced attorney prior to seeking or challenging a guardianship. In some cases, a review of the estate plan of the incapacitated individual may reveal that the individual had already planned for a future incapacity and put all the necessary documents in place to make their wishes known and eliminate the need for court intervention. In fact, we recommend that everyone establish a core estate plan so that, in the event you ever do become incapacitated, no loved one will be faced with attempting to discern your wishes or be faced with an adversarial court proceeding to declare incompetence.

To learn more about estate planning services, please visit Estate Planning.

In all cases, our attorneys and staff have the multi-faceted experience to guide you through a guardianship proceeding and support you in your unique situation. Our attorneys and staff will work tirelessly with courts, physicians, law enforcement, housing, and financial experts to handle each client’s needs with compassion and professionalism.