When someone close to you becomes unable to take care of themselves due to mental incapacity, it can be difficult to get things done if the appropriate paperwork is not in place. Many times a Healthcare Power of Attorney or a Durable Power of Attorney can help in these situations. But sometimes, a situation arises in which such documents have not been executed or could not be executed, or in which more than a power of attorney is needed. In these situations, a guardianship may be appropriate. There are two different types of guardianships when a person becomes incompetent: 1) Guardianship of the Person; 2) Guardianship of the Estate.
Guardianship of the Person
Guardianship of the person can be granted by the court through an incompetency hearing, allowing a third party to make decisions which regard to a person’s health and wellbeing. This procedure may be utilized when a person has a debilitating mental condition which causes them to be unable to make decisions for themselves or which causes them to make decisions which are harmful to their health or wellbeing. For example, when a child who has a mental incapacity becomes an adult, at age 18, and a parent needs to be able to continue to make decisions on behalf of the child, a guardianship may be appropriate. Also, an adult who has developed a mental illness, or who has been involved in an accident which left them mentally incapacitated, someone may need to be appointed as a guardian of the person to make decisions regarding medical care. This type of guardianship is limited to decisions regarding personal care.
Guardianship of the Estate
Guardianship of the Estate can be granted by the court through an incompetency hearing, allowing a third party to make decisions with regard to a person’s money, assets, and other financial matters when a person who has a debilitating mental condition which prevents them from making such decisions, or causes them to be vulnerable to financial predators. When a Guardian of the Estate is appointed, the court will require the guardian to be bonded in an amount sufficient to cover the value of the estate over which they will have control. The court also requires periodic accountings to be filed, detailing the investing, disposal, or spending of the assets. Many times, an attorney who is experienced in handling estates will be appointed as a Guardian of the Estate where there are significant assets.
If you believe you need to seek guardianship over a loved one, contact one of our experienced attorneys who can help you through this process.
