Guardianship and Conservatorship
One of the most common misconceptions about guardianship is the idea that a guardian is only needed for a person who is considered a minor – which is anyone under the age of 18. This isn’t always the case, however. A guardian is a person who looks after and is legally responsible for someone who is unable to manage their own affairs, especially an incompetent or disabled person. Adults who become incapacitated after suffering from a serious illness or injury, will need a guardian in place to make decisions on their behalf and communicate their wishes.
While it is required that children are automatically provided guardianship, if an adult needs assistance managing his affairs, guardianship proceedings must also be initiated. That’s where we come in. Pyke & Associates, P.C. can provide assistance with the guardianship process. We can help you contend against guardianship, exercise your rights and equip you with instructions on fulfilling obligations as a guardian, or find alternatives so guardianship may never become a necessity for you.
Give us a call at 770-507-2500 to learn more about the many ways in which we can offer assistance with all legal matters related to guardianship. During the call, you can also find out answers to questions such as:
- How does guardianship work when someone is incapacitated?
- Is guardianship the only option for helping an incapacitated adult?
- How can Pyke & Associates, PC. service me regarding guardianship?
We’re glad you asked! Below are some brief responses to those questions.
How does guardianship work when someone is incapacitated?
In most cases, the parents automatically serve as guardians for a minor. Parents hold the authority of guardianship unless they cannot properly care for a child, in which case, they would lose their guardianship authority. When an adult requires guardianship, however, it isn’t always immediately clear that a guardian is necessary at all. An adult will self-govern until it is proven that he needs a guardian – which can only happen once court proceedings commence.
If someone you care about has a physical or mental issue which you believe to prohibit them from managing his own assets or affairs, the choice to initiate guardianship proceedings in court is available to you. Once the court decides that your loved one is in fact unable to act on his own, the person in question will be designated a ward (someone who is under the care and control of a guardian). The court will then consider who the best guardian for the ward will be. The best choice may be the person who initiated the court proceedings, a close family member, or even a professional court-appointed guardian. Ultimately, it is at the discretion of the court system to determine who an appropriate guardian will be. This means that the guardian in question could be someone who the incapacitated person would not have chosen to trust with his decisions.
Once the guardian has been selected, the guardian has a fiduciary obligation to act on behalf of, and in the best interest of, the ward. With this responsibility comes routine court overview to ensure that the guardian is doing the job he has been assigned, and protecting the property and assets of the ward.
Is guardianship the only option for helping an incapacitated adult?
Guardianship is the only option to gain control over managing someone’s assets and affairs if the incapacitated person is already unable to make decisions for himself and if no proactive planning is in place. Seeking to obtain guardianship via court will most likely cause a problem if there have been no provisions made for incapacity. The process of getting guardianship can be time consuming, complicated and costly at best.
The good news? If you are reading this, you still have time to proactively make a plan. There are better solutions available to you. You and your family can be pardoned from some very tough decisions. The incapacitated person can be granted the opportunity to choose who will take control by using a Power of Attorney (POA).
When a POA is created, an attorney or selected agent can be given essentially all of the same responsibilities a guardian would be given. The key difference is that the agent is selected by the person giving the responsibility of making decisions on their behalf. It allows the incapacitated person a personal preference. The agent, like a court appointed guardian, has the same fiduciary duty to act in the best interest of the person who becomes incapacitated. However, there would be no court overview or judge being intrusive into the agent’s actions. Instead, legal action would be taken if duty is breached; otherwise, the agent has authority without having to answer to a court system.
How can Pyke & Associates, PC. service me regarding guardianship?
Pyke & Associates, P.C. can provide assistance to anyone seeking to create an incapacity plan or POA as an alternative to guardianship. We can also provide help to those who are seeking a guardian for someone they love. Give us a call today at 770-507-2500 or contact us online at www.cpyke.com to find out more ways in which our legal team assists with guardianship. Let us serve you today.