A guardianship is a legal proceeding supervised by the Court and is sometimes necessary when advance estate planning tools are not in place or are insufficient. A guardian of the person may be appointed if the Court finds that the person is at significant risk of personal harm based on demonstrated inability to adequately provide for nutrition, health, housing, or physical safety. A guardian of the estate may be appointed if the Court finds that the person is at significant risk of financial harm upon a demonstrated inability to adequately manage property or financial affairs.

A guardianship is a legal process that starts with a petition served upon the “alleged” incapacitated person. A Guardian ad Litem is appointed by the Court to investigate and make written recommendation to the Court and will arrange for a medical report. Significant legal rights may be taken away from a person. As a result, the alleged incapacitated person has the right to counsel as well as a right to a trial. As part of the Guardian ad Litem’s investigation, the Guardian ad Litem must review whether a lesser restrictive alternative to guardianship exists. Lesser restrictive alternatives include powers of attorney, Living Trusts, representative payee and the informed consent statute.

If a guardian is appointed, the guardian must report to the Court on a regular basis. If the guardian is handling financial assets, the Guardian is likely to post a bond to ensure that the Guardian does not improperly handle the financial assets, which may otherwise require formal court supervision similar to a probate proceeding. A good elder law attorney should be able to discuss a potential guardianship further with you, particularly the pros/cons of moving forward and what additional options might be considered.