Overview of Guardianship

Guardianship is a court-appointed role that can be both of the person (take care of medical care, or where to live) and of the property (take care of house, or other assets).  There are two categories of guardianship: general or limited.  General Guardianship is when the person loses all rights.  Limited Guardianship is taking away only certain rights.  In any case if a person is appointed a guardian the person known as the ward will lose some rights.  Thus, guardianship is a legal process.

If a person files for a guardianship over another person, the filing party must show by clear and convincing evidence that the person is impaired.  Sometimes, people may be articulate and smart and it may be difficult to find them incapacitated.  There is generally a two-step process for incapacity: impairment and affect.  Impairment is assessing what condition the person has whether it being a mental illness, development disability, physical illness or disability, drug or alcohol dependency.  Affect is assessing if the person’s impairment gets in the way of making decisions or affects the person’s ability to communicate.

There are three assessments used when analyzing impairment and its affects: medical, psychological, and functional.  Medical assessments require a thorough assessment that requires a who runs a series of tests to produce a type of profile of the impact of any physical condition of person’s mental and emotional functioning.  Psychological assessments have two principal tools that are used for a psychological evaluation: standardized tests and assessment interviews.  The interviewer of the person asses the person’s general appearance, behavior, mood, perception of self & the world, and thinking extending to memory, attention span, concentration, insight and judgment.  Questions normally ask for the person to complete certain tasks, such as counting backward by specific numerical numbers, naming the day of the week, the president, and the name and age of their children.  Impairments found in an interview will be seen through difficulty of person dealing with abstract thinking and having trouble with new complex tasks and will thus avoid doing them.  Functional assessments consists of an inventory of basic activities of daily living such as eating, walking, talking, and dressing; and instrumentalities of daily living such as making appointments paying bills and using the telephone.  Examiners may be a nurse or even a social worker who observes the level of capacity of the person.   Separate assessments that are sometimes done are assessing the quality of the Respondent’s decision-making.  If a person exhibits a pattern of unwise or apparently irrational choices, the person will likely be considered mentally incompetent.  The focus of this assessment will be whether the person is able to make a rational decision.  Critical medical choices are normally the basis for many of the guardianships that are filed.

Once incapacity is found a petition for guardianship must explain what the potential ward needs and why the person filing is the right person to become the guardian.  The person filing must file forms with a plan to carry out certain duties (i.e. filing taxes), and must also file an inventory of all real and personal property of the ward.  The potential ward must receive actual notice of the petition for guardianship meaning the petition must by physically served.

 

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