Content provided by: United Cerebral Palsy of Greater Indiana and the New York State Developmental Disability Council
When a person is unable to manage all or part of their affairs, it might be necessary for someone else to lend assistance. This person would advocate in your family member’s best interest. If the person who is designated to look after your family member after you are gone is appointed in an unofficial manner – that is, without the use of the courts – he or she is called an advocate. If the person is appointed by the courts – in most cases, after being suggested by you or your spouse – then the person is the guardian.
The rights of the people who need guardians to help them manage various aspects of their lives is an issue that continues to be in flux. In the case of guardianship, a delicate balance needs to be struck in determining the extent to which a person’s basic civil rights are to be curtailed by the judicial appointment of another person to act in their stead. The balance is not so delicate that it cannot be achieved. It is delicate enough, however, that you need to understand the full weight of designating someone else to make decisions for and/or with your family member. Often a parent will have themselves appointed guardian of their child (who is referred to as the ward) and name a standby guardian at the same time. Upon the death of the parent/guardian, the standby guardian can immediately assume the role/duties of a guardian.
Guardianship should be viewed as an individual tool, but to be so, it must be understood. Guardianship can be an important support and service for people with developmental disabilities. It can provide both advocacy and access to services. It can make the difference between someone continuing to live in the community or having to move to a facility. In fact, it can provide a degree of stability to the plan you develop with your family.
If the need for a guardian is immediate, the court may, with or without notice, appoint a temporary guardian for a period not to exceed 60 days. The appointment may be to perform duties regarding specific property or to perform specific acts, as stated in the order of appointment. The temporary guardian shall make such reports as the court may direct and shall account to the court upon the termination of his authority.
DANGER: This can be done without notifying the ward.
Guardian of the Person
A Guardian of the Person is responsible for caring for and maintaining the ward. If the ward is under 18 years of age, the guardian has a duty to see that the ward is properly trained and educated and that the ward has the opportunity to learn a trade, occupation or profession. The guardian can have the custody of the ward but has no control over the ward’s money or property. The guardian maybe required to obtain the permission of the court for some decisions.
Guardian of the Estate
It is the duty of the Guardian of the Estate to protect the ward’s property from persons who have no right to it. The Guardian is required to invest money not needed to take care of the ward in a reasonable manner. The Guardian of the Estate is required to pay all valid bills of the ward as they become due and to otherwise manage the ward’s property. The Guardian is required to keep separate financial records. For large estates, bank trust departments are sometimes appointed to be the Guardian of the Estate.
A Limited Guardian is one appointed to do only those things specifically included in the court’s order. Whenever a ward can do most things for himself, the court should establish a Limited Guardianship. The duties of the Limited Guardian are determined by the needs of the ward. Guardianship is usually sought when a ward is thought to be legally incompetent to make decisions for himself/herself.
For assistance in the guardianship process, contact Legal Services or a local attorney.
Looking for more tips on establishing legal guardianship?
Visit the My Child Without Limits support community and talk to fellow parents, caregivers, and experts about becoming a legal guardian.
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