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Guardianship

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Guardianships are a sensitive, emotional area of law.  I provide compassionate counsel to those exploring a guardianship.  If you find yourself at this difficult crossroad, I am available to to discuss whether a guardianship is necessary, the ins and outs of guardianships, as well as explore alternatives to a guardianship.

What is a Guardianship?

Guardianship is a legal process designed to protect vulnerable persons (including as a result of age (under 18), disease, injury, developmental disability, or physical disability) from abuse, neglect (by self or third parties), and exploitation. Guardianship provides for management of the person and/or the management of his or her money while preserving, to the largest extent possible, that person’s independence and right to make decisions affecting his or her life.

It removes certain rights and privileges from a person (i.e. the “ward”) and grants another person (i.e. the “guardian”) the authority (broad or limited depending on the extent of incapacity) to make decisions for that person.

Who determines incapacity?

Only a court can determine that a person is incapacitated and in need of a guardian.  Only a court can define the scope and duration of a guardian’s authority.

Are there different types of guardianships?

Yes.  A Guardian of the Person is appointed by the court to take care of the physical well-being of a ward and a Guardian of the Estate is appointed to care for a ward’s property. Often both a guardian of the person and a guardian of the estate are appointed and this can be the same person.

Are there alternatives to guardianship?

Yes.  The most common are:

  • Powers of Attorney–A Power of Attorney (POA) is an instrument executed by an adult who has capacity authorizing another person to act as his or her agent. The power to the agent may be either specific or general.  There are powers of attorney specifically for health care issues and specifically for financial issues.
  • Management of Community Property–If an individual is judicially declared incapacitated, the spouse may have the full authority to manage, control and dispose of the entire community estate without the necessity of a guardianship, if the court does not find the spouse to be disqualified.

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