Guardianship is a legal arrangement when someone stands in the shoes of another to handle their personal or financial affairs or both. The process begins with a court proceeding brought by a petitioner who may be concerned about an elderly relative, friend or neighbor who doesn't appear to be caring for him or herself properly. The petitioner may also want to be the guardian of the person they are concerned about, or the petitioner may want to hire a professional guardian to take care of the person.
Most guardianships can be avoided if a power of attorney is in place in advance of the state of deterioration of an elderly person, but even there are times that a guardianship is additionally necessary if not all precautions are provided within the power of attorney documents.
A Guardian is a fiduciary, meaning that a person wanting to become the guardian of another must not have any felony convictions or crimes of dishonesty on their criminal history, they must be able to be bonded, and they sometimes are required to post a bond if the incapacitated person's estate has significant value.
Guardianships are often commonly used by parents of disabled children when their children become adults but are not able to make financial or personal decisions on their own because of their disability.
With the commencement of the court proceedings comes the appointment of a Guardian ad Litem, or GAL. The GAL is the "eyes and ears of the court" and conducts extensive research into the living and financial situation of the Alleged Incapacitated Person (AIP) to determine first, whether a guardianship is necessary to protect the well-being of the AIP, and second, whether the proposed guardian would be the appropriate person to protect this person's interests. Additionally, the GAL appoints a medical professional to conduct a psychological evaluation of the AIP and includes that in the GAL report to the court on the situation.
Some times, the person who is being considered for a guardianship is not pleased with the situation, and always has the right to have an attorney appointed to assist with the proceedings. The attorney for the AIP is paid for by the AIP, unless the AIP otherwise qualifies for a waiver of the filing fee. If so, the county pays for the attorney, the medical evaluation, and the expenses of the GAL. If the AIP does not qualify for a waiver of the filing fee, the case can become very expensive. If lesser restrictive alternatives are available, such as durable and healthcare powers of attorney, and can be as effective, it is best to implement the powers of attorney and avoid a guardianship proceeding.
