Guardianship is a legal proceeding by which a person petitions the Court to allow the petitioner to assume control over the physical person or property of another person. Guardianship can occur in several circumstances:
- Injury or illness of an adult that leaves the adult unable to care for themselves or their property
- Minor Children who do not have a parent to care for them
- Mentally disabled persons who are at risk of being taken advantage by designing persons
- Older adults suffering from dementia or Alzheimer’s
The need for guardianship over a younger adult will usually occur if that person has suffered illness or injury, which reduces their ability to care for their physical needs or handle their property. Guardianship is usually awarded by the court to a family member concerned about the individual subject to guardianship.
If you have young children you should consider who you would want to have guardianship over your child is something should happen to you that would prevent you from raising your child. Consider also that the person you would want to have guardianship over the person of your child, the one responsible for the child’s upbringing, may not be the same person who would have guardianship over any property or money you would leave for a child. Parents of a mentally or physically disabled child also need to consider guardianship issues in their estate planning.
Most people are familiar with the situation where an elderly parent or other family member may need guardianship because of Alzheimer’s or some other form of dementia or physical incapacity. Guardianship may be avoidable in this circumstance if a durable power of attorney is executed when the person is competent.
There are also instances in which the state has to take guardianship over a person and their property, through such agencies as the Office of the Public Guardian, or the state’s Office on Aging. Public guardianships can occur if the subject of the guardianship has no relatives to care for them or if such relatives have been removed from guardianship by abusing their position as guardian.