Types of guardianship include:
- Guardian of the person
- The estate (property and finances)
- Temporary guardianship
- Standby guardian (a backup to a primary guardian)
Guardianship laws vary by state, and attorneys familiar with guardianship processes for the specific area should be consulted. Several general concepts hold true, however:
- Guardianship is predicated on an individual being considered incompetent relative to other adults within that community.
- Lack of evaluative capacity is defined as the inability to take in, evaluate, and communicate information for decisions. It is not a function of being old, having an unrelated disability, or making “bad” but otherwise informed decisions.
- Individuals must be at least 17 years and 9 months old at the time of guardianship (i.e. transitioning from “minor” status to adult)
- Individuals must have a court-determined impairment including:
- a developmental disability or serious or persistent mental illness
- a degenerative brain disorder, or “other like incapacities”.
- note: a physical disability, unless it affects communication, is not a criterion.
- Individuals must lack evaluative capacity, putting them at risk of harm to either their person or estate and less restrictive alternatives (e.g., limited capacity to assign a power of attorney) are not available.
Individual’s rights are protected through state and federal constitutions. These include the right to:
- Communicate with court or government officials
- Petition the court for a review of guardianship, protective services, and placement
- Representation (attorney) and the right to communicate privately with advocacy agencies
- Protest placement in a facility
- Withhold consent and to refuse certain treatments (e.g., mental illness treatment).
However, certain rights (e.g., right to vote, execute a will, serve on a jury, consent to marriage, apply for licenses, consent to organ donation) cannot be delegated to a guardian.
The Guardianship Process is based on legal due process.
- Step 1: An individual is deemed to lack decisional capacity, and to lack the limited capacity to assign a less restrictive representative (i.e. a Power of Attorney). This is decided by two physicians, or a physician and a psychologist.
- Step 2: A petition is filed with the state if the person meets the standards for guardianship.
- Step 3: Notice must be provided to the individual, proposed guardian, and any “interested persons” (family or friends who have a relationship with the individual, and who wish to have a say in the proceedings).
- Step 4: A guardian ad litem is assigned. This is not a temporary guardian, but rather someone who makes certain that the individual’s rights are not violated and represents the best interests of the proposed ward during the guardianship process.
- Step 5: A court hearing is held in the jurisdiction where the individual resides.