Guardianship Essay, Research Paper

Guardianship

Guardianship is a legal relationship between a competent adult and a person over the age

of 18 and whose disability causes them to make irrational decisions. The incompetent person is

called the ward. The disability may he caused by mental illness, developmental disability,

accident, or other causes. A developmental disability or mental illness is not, alone by itself

enough reason to call someone incompetent. Even advanced stages of alcoholism is reason

enough to find a guardian or some other kind of court intervention in that persons life.

Competency has to do with a person’s ability to make an ‘informed decision’, or, with the risk of

harm that they may experience due to their inability to provide for themselves or control their

business. The court has the right to make the guardian last indefinitely. The only way to end it

is to have the court end it. The only way that they do that is where the child reaches the age of

majority and then they don’t need a guardian or if the incapacitated person dies. The

incapacitated person could also get better and then they wouldn’t need a guardian any more

either.

In the relationship between the guardian and the ward, the guardian is given the right to

make decisions on behalf of the person with a disability. When a guardian is appointed, the

court gives the guardian the authority to exercise certain legal rights in the wards best interest.

The courts, when giving rights to a guardian, take them away from the ward. Because

guardianship involves such a serious deprivation of rights and dignity, the law requires that

guardianship be executed only when other, less restrictive alternatives have proven not to work.

If less restrictive forms of protection are not enough to protect a person from the risk of harm,

then guardianship should be sought on behalf of the incapacitated person.

A guardian’s authority is limited to those areas of decision making for which there is

evidence to indicate that a person is incapacitated. Some incapacitated people are able to make

responsible decisions in some, but not all, areas of their lives. In these situations guardianship

may be limited by the court to only those areas in which the incapacitated person is unable to

make responsible decisions. Some individuals require a guardian who has responsibility for both

the person and the estate. The primary responsibility of the guardian with duties pertaining to

the ward is to provide consent for issues such as medical treatment and living situation. A

guardian of the estate is responsible for managing some or all of the property and/or income of

the ward.

There are three different kinds of guardianship. The first kind is the most common type

and that is plenary guardianship. Plenary guardianship or complete guardianship is when the

ward has very little capacity and the guardian makes all the important decisions. People found to

be totally without capacity or understanding to make personal decisions or manage financial

affairs, are given plenary guardians.

In determining a need for person guardianship, two prominent issues are medical decision

making and residential placement. If a person is unable to give informed medical consent or is

unable to live independently in an appropriate residence, person guardianship should be

considered.

Estate guardianship is necessary where a person, due to some disability, cannot manage

financial affairs. However, courts rarely appoint plenary estate guardians where estate assets are

minimal. Bill paying assistance and money management assistance programs should also be

considered before you seek an estate guardian. Small estate amounts can be collected and

disbursed, without resort to estate administration. Some courts encourage the use of small estate

affidavits and court-supervised deposits of wards’ funds as alternatives to estate guardianship.

However, as stated before, many judges rarely appoint estate guardians in small or minimal

estates.

Perhaps the least understood and least used form of guardianship applies where a person

lacks some, but not all of the capacity to make personal decisions or handle an estate, the

appointment of a limited guardian is not a finding of legal incompetence. Limited guardianship

is intended to be less severe and more individualized than plenary guardianship.

Although guardianship is supposed to be used only to the extent necessary by a person’s

actual mental, physical and social limitations, courts tend to create plenary guardianship rather

than limited guardianship, even where limited guardianship may arguably be more appropriate.

One reason for the bias toward plenary guardianship is that the creation of an appropriate

limited guardianship is complicated when compared to plenary guardianship. A physician must

clearly state between things a person can and cannot do and must clearly describe these things to

the court. The court must then determine which of these rights will be taken from the person with

disability, considering the consequences for each. The limited guardianship must be

understandable to the guardian, ward and other parties that may depend on the document. Not all

guardianship practitioners, medical practitioners and courts are able to make an appropriate,

useful limited guardianship order.

The following are some better alternatives, which should be considered before pursuing

guardianship. Representative or Protective Payee is a person who is appointed to manage Social

Security, Veterans’ Administration, Retirement, Welfare Assistance or other state or Federal

benefits or entitlement program payments on behalf of an individual. Conservatorship is a

voluntary proceeding in which a person (the conservatee) asks the Court to appoint a specific

individual (the conservator) to manage his or her estate. The court must find the ward incapable

of managing his or her financial affairs, but capable of making the decision to have a conservator

appointed to do so these actions. Power of Attorney is a contract between two individuals where

one party gives to the other the authority to make any number of decisions (e.g. medical,

placement, financial) on his or her behalf. The person giving the power of attorney must be

mentally competent to enter into the contract as learned in this class. If the contract is made and

the six essential elements of a contract are met, the power of attorney remains in effect even if

the principal becomes mentally incapacitated.

Here is a case where some kind of guardianship or another court related act would have

to take place. A person with Alzheimer’s disease often loses all short-term memory and

gradually loses even long-term memory. That person cannot make responsible decisions such as

remembering to take medication or remembering to pay bills. If that person did not execute a

power of attorney while he or she still had the legal capacity to do so, the only way for a family

member to take over bill payments or seek medical assistance for the disabled person is to

execute a guardianship through court intervention.

In conclusion there are very many things you have to consider before you try to become a

legal guardian. You must first think of what is in the best interests of the ward. Then, if you

can, you should try to find some better, less restricting options, for him or her. Being a guardian

to a child or a mentally disabled person is a big responsibility and should not be taken lightly.

There are businesses and law firms, which can help you, research and become a guardian.