Guardianship Basics, Part 1

Q. What is a guardianship?

A. A guardianship is a court-created relationship in which one person (the guardian) assumes authority and control over another (the “ward”).  The ward must be determined incapacitated to make his/her own decisions.  Incapacity may be due to age only (in the case of minors) or it may be due to any number of disabilities.

Q. How does a court create a guardianship?

A. For those seeking guardianship for circumstances other than age only, the procedure starts with an applicant obtaining a certificate of medical examination (“CME”) in which a medical dr. certifies to what degree the proposed ward is incapable of caring for themselves and/or making their own decisions.  The CME and application are filed in the county in which the proposed ward lives (or owns the most assets) and a hearing is held to examine the evidence before the court.  If the court determines by a preponderance of the evidence that the proposed ward needs supervision, a guardianship will be established.  All “interested persons,” i.e., relatives including spouses, parents, siblings and children are notified of the pending hearing to establish guardianship to provide all those interested persons an opportunity to contest the matter all together and/or the appointment of the particular proposed guardian.   If the court grants a guardianship, the scope of guardian powers are listed on the Order declaring Guardianship and the guardian is awarded Letters of Guardianship after their oath is taken and bond is posted. The guardian may present the Letters of Guardianship to third parties as proof of their authority to act on behalf of the ward.

This article is written by an attorney at Wyatt & Mirabella, PC. Always consult an attorney before making any legal decisions. To make an appointment today for a free consultation, please click here to contact us.