A Guardianship is a legal proceeding that is used to protect children and adults who are unable to care for themselves. Although guardianships offer important protections for vulnerable loved ones, very technical court procedures must be strictly followed to make sure that they are created properly. SederLaw works with families every day to obtain guardianships so they can have peace of mind about their loved one’s well-being.
What Is A Guardian?
A Guardian is an individual who the Court has appointed to manage the personal and health interests of someone who is incapable of making their own decisions, or caring for themselves. The individual over whom the guardianship is established is sometimes referred to as the “Incapacitated Person”, if (s)he is an adult whom the Court has determined does not have the capability to make informed decisions or judgments about his or her well-being. A Guardian may also be appointed for a child if the child’s parents are unable to care for him or her, and a responsible adult must be appointed to protect the child’s well-being.
The guardianship may be temporary, and it could be extended every ninety (90) days depending on the circumstances giving rise to it. The Court will eventually make the Guardianship permanent if it decides that the incapacitated person’s (or child’s) circumstances require permanent protection. Although the guardian is endowed with broad legal powers, courts monitor guardians and hold them accountable to ensure they don’t take advantage of the child or incapacitated person.
Guardianships For Children
A guardian is allowed to make decisions for a child, just as a parent would. Although a guardian can decide certain matters for the child, he or she is generally not considered to be financially responsible for obligations such as child support. An individual may petition the court to appoint him or her as a guardian in the following circumstances:
- The petitioner is caring for the child and needs to make decisions about the child’s day to day care, education, health and well-being.
- The child’s parents are unable or unavailable to care for the child (for instance, they have abandoned the child, are incapacitated themselves or have become incarcerated)
To become a guardian for a child, the Petitioner must file paperwork with the court, including:
- Petition for Appointment of Guardian of a Minor
- Affidavit Disclosing Care and Custody
- An affidavit describing the circumstances that require a guardian, depending on whether the parents agree with the appointment of a guardian
- Motion to Appoint an Emergency/Temporary Guardian if there is an urgent need for a guardian to protect the child.
A parent of a child who is the subject of one of these proceedings has the right to legal counsel. If the parent cannot afford an attorney, one may be appointed for him or her. The child can also have an attorney appointed to represent him or her.
After filing, the petitioner must provide notice to the parents and other interested parties. The court will schedule a hearing to determine whether:
- The person seeking to be a guardian is qualified
- The required notices have been given
- The basic requirements for an appointment have been met
- The requested appointment provides for the welfare and best interest of the child
If the court approves the guardianship, it will determine the breadth of the guardian’s powers and responsibilities. Guardians can be appointed on an emergency basis if necessary, and they can also be appointed through a last will and testament.
Guardianships For Adults
Incapacitated adults may also require the appointment of a guardian. The guardian has the authority to make decisions regarding the adult person’s safety, physical health, and personal care. As a prerequisite, the adult must be legally incapacitated. This requires a clinically diagnosed condition that prevents the adult from being able to make or communicate decisions about his or her care. A Medical Certificate must be filed with the Court signed by a legally recognized treatment provider that explains the Incapacitated Person’s lack of capacity based on first-hand knowledge.
The person wishing to become a guardian first must determine whether he or she wants a limited or complete guardianship. In other words, the petitioner must decide how much authority he or she believes the court should permit.
A guardian is responsible for:
- Acting in the best interests of the incapacitated person
- Considering the ward’s desires and personal values in making decisions
- Notifying the court of any change in address for the guardian or incapacitated person
- Notifying the court if the incapacitated person dies
- Periodic reporting to the Court as to the Incapacitated Person’s status and overall condition
The process for becoming a guardian for an incapacitated adult is similar to becoming one for a minor child. The petitioner must file the following with the court:
- Petition for Appointment of Guardian for an Incapacitated Person
- Medical Certificate (completed and signed by a registered physician, or other legally authorized health care provider.
- Motion to Appoint an Emergency/Temporary Guardian if there is an urgent need for a guardian to protect the person.
Other forms may also be necessary. Proper notice must be given to the incapacitated person, and there are reporting requirements the guardian must follow if he or she is appointed. In the event the incapacitated person regains the ability to exercise powers delegated to the guardian, the guardian must immediately notify the court.
Contact Our Guardianship Attorney
There are other procedural rules involved with guardianships, and some cases can become complicated if an interested party retains legal counsel or contests the guardianship. If a loved one is in need of care or has started to show physical limitations potentially causing endangerment, the most important first step to take is to contact a dedicated guardianship attorney. Let SederLaw review your options with you today. Contact us to schedule a consultation.
SederLaw helps clients with guardianship needs in Worcester from their primary office as well as clients throughout MetroWest from their Westborough office.