Guardianship & Legal Resources

A guardian is a person or agency who makes decisions for someone who cannot make decisions for themselves. In legal terms, this person is considered “incapacitated.” This resource explains the legal process for becoming a guardian for another person.

What does it mean to be an incapacitated person?

An incapacitated person cannot make or communicate decisions about their health, safety, financial, or self-care needs. The court decides whether a person is incapacitated at a court hearing. Only an incapacitated person can have a guardian appointed. However, not every incapacitated person needs a guardian. Guardianship may be considered when the person does not have enough support or is not willing to use the available support.

Who can be a guardian?

• A guardian can be a person, county agency, or institutional trust that is interested in the person’s welfare.
• For people living in state facilities, the state may choose the facility’s guardian office to serve as guardian of the estate.
• The court will consider the person’s choice of a guardian, if possible.

What does a guardian do?

• A guardian puts the person’s needs first when making medical and financial decisions.
• The guardian must consider three important things when making decisions. Those three things are autonomy, independence, and protection of rights.
  • Autonomy – The ability to choose how to live your life. Choices should be based on what the person would want if they were able to answer the question.
  • Independence – The ability to make your own choices instead of having others make them for you. The person should be able to live where they can make as many choices as possible, as long as doing so does not put them in danger.
  • Protection – Keeping the person safe from being taken advantage of or harmed.
• A guardian should make decisions based on what the person would choose if they were able to make the decision. Guardianship also means staying involved in the person’s life and making sure they have opportunities for enjoyable activities. It can include choosing and organizing caregivers, helping the person find and keep housing, and managing their finances.

Are all guardianships created equal?

• Each person with a disability has different strengths and challenges. Because of this, guardianship can look very different from person to person. There are different types of guardianship, different decisions that are covered, and different amounts of time that the guardianship might last.
• When seeking guardianship, you must consider which type of guardian to apply for. A court can also appoint more than one guardian, with each person having different responsibilities.

What type of decisions does the person need help with?

• Guardianship of the person covers health care, where the person lives, custody, education, and training. It may also cover support services and social activities.
• Guardianship of the estate allows the guardian to manage the person’s finances.
• Guardianship of the person and the estate covers both medical and financial decisions for the protected person.

How much help does the person need?

• Plenary guardian: The guardian can make almost all decisions for the person*
• Limited guardian: The judge decides which decisions the person can still make.
• For the person: Decisions may include general care, where and what type of home the person lives in, and how to manage services. Services may include physical and mental health care, as well as ongoing social and job supports. The court may also give the guardian legal power/authority to sign consents.
• For the estate: The court decides what part of the person’s income the guardian can control and what duties the guardian has.

*Some decisions require separate consideration. These may include consent to sterilization, abortion, ECT, removal of healthy body organs, preventing marriage, consent to divorce, and experimental medical or behavioral procedures.

How long will the person need assistance?

If this is a situation of urgency, as in to prevent injury to someone on a short-term basis, an emergency guardianship may be set up.

• For the person, the time period can be from 72 hours to a maximum of 20 days.
• For the estate, the time period will be no more than 30 days.

The other choice is for permanent guardianship. This means it will continue indefinitely, and may only be removed or changed by a new court order or the death of the guardian.

*Some decisions require separate consideration, such as agreement for procedures for sterilization, abortion, ECT, the removal of healthy body organs, to prohibit marriage or consent to divorce, as well as any experimental biomedical or behavioral medical procedures or experiments.

How long will the person need assistance?

• If there is an urgent need, such as preventing injury for a short time, an emergency guardianship may be set up.
  • For the person: The time period can be from 72 hours to a maximum of 20 days.
  • For the estate: The time period can be up to 30 days.
• The other choice is for permanent guardianship. This means it continues indefinitely. It can only be removed or changed by a new court order or by the death of the guardian.

When a person has a guardian or a power of attorney (POA), it is important that the person keep as many rights and as much independence as possible. However, sometimes guardians or POAs might abuse their role. This resource reviews some of the warning signs that a guardian or POA might be abusing their powers.

Warning Signs of Abuse:

• The person who needs to be cared for (the person who is “incapacitated”) appears neglected. For example, they might appear dirty, have unwashed clothes, smell bad, or appear to be losing a lot of weight.
• The guardian or POA might make it difficult for the person to speak to anyone else unless they can supervise the conversation.
• Choices and decisions being made for the individual do not seem to reflect their wishes or past goals shared by the person.
• There are major changes in the level of care the person receives. For example, in-home staff have been suddenly stopped, or the person is suddenly moved to a residential care facility.
• Bills are not being paid. Missed payments, returned checks, and/or cancellation of services can be one of the first signs there is a problem.

What are Guardians Expected to Do:

• Guardians should visit with the person regularly to check on them and make sure they are doing well.
• Guardians should help the person to speak up about what they want and allow them to make decisions for their own life.
• Guardians should keep their money in a separate account from the other person’s money.
• Guardians should keep receipts and detailed notes about how the person’s money is being spent.

If You Suspect Abuse:

If you suspect someone is abusing their power of attorney or guardianship, it is important to say something. Report concerns about abuse of an adult with a disability by calling Adult Protective Services on the Statewide Elder Abuse Hotline at 1-800-490-8505.