We all prefer to decide for ourselves how we will live our lives -- where we will live, how we will dress, what we will eat, with whom we will share friendship -- but, unfortunately, this is not always possible. Every day, people suffer injuries or experience health failures that lead to being unable to make good decisions for themselves. These people need someone to assume their rights and make decisions about many aspects of their daily lives. If there are no alternatives, a guardian can be court-appointed to advocate and support the person.
A guardianship is the legal proceeding by which a corporation or disinterested public agent can be appointed to manage the personal or financial affairs of an individual who has been judged to lack the capacity to do so on his or her own. It is a legal relationship between a capable adult entity (the guardian) and a person who has been declared legally disabled in a court of law (a ward).
The guardian may be a family member, a close friend or neighbor, or a professional guardian (an unrelated person who has received specialized training). He or she will support the right of the incapicated ward to make decisions whenever possible, and will solicit and respect the views and wishes of the ward, unless these views and wishes must be overridden in the ward's best interest.
When an individual is determined to be incapacitated and there is no alternative to guardianship such as power of attorney, a healthcare directive, or a living trust, the court may appoint a guardian to exercise those delegable rights which have been taken away. For that reason, the initiation of guardianship proceedings should be considered only after all other possible alternatives have been explored.
Medical evidence is normally sought to support a finding of incapacity, but it is important to remember that incapacity is a legal term, not a medical definition and the threshold issue is whether or not the alleged incapacitated person is capable of exercising certain legal rights, such as the right to manage money or to consent to medical treatment. Many factors, including mental and physical health, personal environment, and financial status can impact an individual's capacity.
Frequently Asked Questions