A guardianship is a vital legal instrument that enables one individual or entity permission for making decisions for another — their ward. Courts are delegated with determining guardianships, and they usually appoint guardians in instances of an individual’s incapacity or ailment.
For instance, maybe a person is put into a coma because of a car accident. Unless they have a durable POA and medical directives previously in place prior to the accident, the court is going to designate a guardian for making both financial and other decisions for the comatose person.
This is important since investments, real estate, and others might lose their value over time when left neglected. Bills also need to be paid — a guardian should make sure that too many liabilities do not accumulate throughout the period of incapacitation.
Why You Need a Guardian for an Incapacitated Individual?
Mental and/or physical disability or incapacitation can involve severe and long-term circumstances that impose great restrictions on an individual’s ability for taking care of themselves, voice themselves verbally, earn a living, and live on their own. Such disabilities reflect the requirement for a combination of services and treatments.
Guardianships for incapacitated — physically and/or mentally — individuals has, during the last decades, been accepted as a measure meant to expedite the independence and well-being of a ward. Therefore, guardianships are restricted as much as satisfactory to allow wards to manage as much control over their lives as they can while maintaining integrity and independence. The desires of the ward are given precedence, and wards are allowed to do as much of their own caretaking as is physically and mentally achievable in their situation.
What Authority Does a Guardian Have?
Guardians are granted only those authorizations necessary to achieve what the disabled or incapacitated individual cannot achieve on their own. These authorizations for the ward might include:
- Guaranteeing the availability and maintenance of care for them
- Making financial decisions for them
- Making medical decisions for them
- Ensuring that educational and medical services are continued and acceptable
- Giving updates to the court of the ward’s state. (These updates detail the ward’s living conditions, mental and physical health status based upon medical exams and official records, present a list of services being given to the ward, detail services carried out by the guardian, account for the ward’s financial assets, and any other information required to give to the court for it to evaluate the status of the ward and the guardian’s responsibilities.)
Guardians aren’t expected to control every part of a ward’s life; they aren’t providing caregiving services. Think of it is as a condition of a decision-making service. Guardians step in when required to make decisions and to give permission to things that the incapacitated individual isn’t capable of doing on their own. That is the boundary of their responsibilities.
How Is a Guardian for an Incapacitated Person Chosen?
To be chosen, a guardian is required to be qualified to serve. Qualifications vary by each state, but generally, a guardian is required to be a legal adult (eighteen years of age) and cannot have a felony or criminal record showing dishonesty (forgeries, bribes, etc.). The guardian themselves must not be incapacitated, obviously.
The court is going to choose on the basis of the express wishes of the ward, when the ward is able to convey them. When the ward is found to not be able to convey their wishes, then the court is going to make a decision based on pre-incapacity documentation like a designation of guardian by an adult, durable POA or a will. If there’s no durable POA available, then the courts usually prefer to designate a spouse, parents, adult children, siblings, or other relatives.
Make Your Wishes Known: Speak a Family Law Attorney
If you’re worried about possible disability or incapacitation and having the court designate a guardian on your behalf — as opposed to choosing your own guardian candidate — then you should locate a knowledgeable family law attorney and carry out a duly probated will and a durable POA.
Planning for a guardianship before you may need one is going to guarantee that the individuals you choose, outside of some unforeseen or disqualifying circumstance, is going to have the authorization for taking care of you in the occurrence of some tragic accident or ailment. Find a family law attorney near you today.
Staff, F. L. (2021, December 30). Guardianship of incapacitated or disabled persons. Findlaw. Retrieved June 7, 2022, from https://www.findlaw.com/family/guardianship/guardianship-of-incapacitated-or-disabled-persons.html
Arizona Family Law
Naming guardians in your will can be part of your estate plan. You may think you’re too young or don’t have enough money to justify the expense, but if you have children, you have priceless assets. There are many considerations when naming guardians for your kids. However, the process doesn’t have to be expensive or complicated.
There’s nothing better than the peace of mind you will have knowing you’ve protected your family at a time when they need it most. Let us help. Schedule a consultation or contact Ogborne Law, PLC of Arizona today.