A guardianship is where someone is appointed to care for an individual or a child. The person being cared for is called the Ward. The person appointed to care for them is called a guardian. Any qualified person may be appointed guardian over a ward. However, the law establishes the following as to the order of who shall be appointed if the matter is contested:
- Person named in a durable power of attorney legal document;
- Spouse of the ward or spouse’s choice/nominee;
- An adult child of the ward;
- Parent of the ward or parent’s choice/nominee
- Relative of the ward with whom the ward has lived the prior 6 months
- Any Nominee of the current caretaker of the ward
When appointing guardianship over a child, the Probate Court will act in the best interest of the minor. If the child is 14 years or older, then the minor can nominate someone unless it’s contrary to the best interest of the child. A parental nomination has priority as well so that a parent can appoint a guardian for a minor child or unmarried incapacitated child.
The Guardian, once appointed, has many powers to consent to medical care, marriage, and make many other decisions for the Ward. However, if they want to be able to make financial decisions they must be appointed as Conservator. A Guardianship usually ends upon death of the ward, resignation of the guardian, adoption or marriage, the minor becoming an adult, or if incapacity is terminated.
When is a Guardianship Necessary
Sometimes a parent might need to appoint another adult to be guardian over their minor child to enroll them in school or to make all decisions for the child while they are away. For example, someone in the military might be stationed overseas and need to appoint someone to be guardian over the child while they are gone.
A legal guardian over another adult is someone who has been designated by the court to serve as a representative of an individual who is no longer able to maintain mental capacity. The legal guardian will be able to make decisions on behalf of the incapacitated individual. The legal guardian is usually given the legal authority to make decisions that concern the individual’s healthcare. Legal guardians may also be given the power to determine where the incapacitated individual lives. For example, if your husband has advanced dementia to where you can no longer care for him and he refuses to enter a skilled nursing home, you could hire a family law attorney to petition the court to appoint you as his legal guardian, and as his legal guardian, you could have him moved into the skilled nursing home even though he does not want to be moved in there. Many times in a personal injury lawsuit, a judgment or settlement cannot be distributed to the injured party due to their incompetence. Therefore, a guardianship must be established or a special needs trust account.
A conservator, on the other hand, is someone that is appointed by the Probate Court to manage and take care of an incapacitated individual’s property. Conservators can receive, invest, reinvest, deposit, retain, and acquire property and assets on behalf of the incapacitated individual, but they are also given even more powers.
If your spouse has advanced dementia, you may want to consider becoming his legal guardian and conservator. To be appointed as the legal guardian and conservator over your husband and his property and assets, there are a few steps that you must take.
You will first need to file a petition with the Probate Court. The Probate Court will appoint an attorney, known as a guardian ad litem, that will represent the Ward and their best interests. Next, your spouse will need to be evaluated by a physician or another appropriate medical professional. Then, a representative will be appointed by the Probate Court, and a hearing will be conducted. After this hearing, the Probate Court may issue an order that grants your petition, which will officially make you your husband’s legal guardian and conservator.
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