Guardianship

The incapacity of a family member or loved one is difficult to accept and deal with. However, if an individual is no longer able to handle their own financial assets or medical care (“incapacitated”), it often falls upon the individual’s family members or loved ones to care for the incapacitated individual (“the Ward”). If the family member or loved one is named in a Durable Power of Attorney or Advanced Health Care Directive as the Ward’s Agent, then stepping in to care for the Ward may be quick and simple.

However, many people fail to plan for the possibility of their own future incapacity. If this is the case, it is likely that the Ward has not executed a Durable Power of Attorney or Advanced Health Care Directive and that no one has the legal authority to make financial or medical decisions on behalf of the Ward.

If this is the case, it may be necessary for the Ward’s family members or loved ones to ask the Court for permission to assume the rights and duties of caring for the Ward’s financial and physical needs with the individual’s assets.

This process begins by the proposed guardian asking the Court for the legal authority to make financial and health care decisions on behalf of the Ward. Next, the Court will appoint at least three different experts to meet with the individual and report to the Court with their expert opinion as to whether the Ward is incapacitated. If it is determined that the Ward is incapacitated and there is no objection, the proposed guardian is often granted the legal authority requested.

Once the guardian is appointed, the guardian has many rights and duties to the Ward and the Court, including but not limited to asking the Court for permission to spend the Ward’s assets, filing a yearly accounting, and answering to the Court for any questionable expenditures. The guardian may also receive payment from the Ward’s assets for the time spent caring for the Ward.

At The Preston Law Firm, we understand the pain, stress, and confusion that are inherent any time a guardianship is needed. We are here to guide you and help determine the best way to allow you to care for your incapacitated family member or loved one. It is our goal to make an inherently difficult and confusing area of law simple so that all you have to worry about is caring for the Ward. We’re here to help you beyond simply being appointed as guardian, but in your duties acting as guardian as well.

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