Frequently Asked Questions about Legal Guardianship

  1. What is guardianship? When a person suffers from a legal incapacity, guardianship is the Court proceeding in which another person (the guardian) is appointed to act on behalf of and be responsible for property of the incapacitated person.

  2. What is a legal incapacity? A person under the age of 18 (a minor) is subject to the legal incapacity of minority. An adult who by reason of illness, old age, or injury, is unable to act in his or her own best interest, is also considered legally incapacitated.

  3. How is incapacity determined? Since minority is solely a factor of age, any person under the age of 18 is incapacitated by minority without any further determination. In the case of an adult, a person’s incapacity must be determined through a Court proceeding. In that proceeding, a panel of three mental health professionals is appointed to examine the individual and report to the Court. An attorney is also appointed to represent the incapacitated individual. A person may be determined to have limited incapacity or total incapacity based on the findings of the medical panel.

  4. When is a guardianship necessary? If a minor inherits property with a value greater than $15,000, then a guardianship of the property of the minor must be established. In that case, one or both of the parents are usually appointed the guardians. If both natural parents of a minor die, then a guardian of the person of the minor must be appointed. In the case of an adult, if a person cannot take care of himself, or is subject to exploitation by others due to mental incapacity, then a guardian of the person and/or the property of that person will need to be established. 

  5. How do I plan for incapacity? In a will or trust, you can provide for the appointment of a guardian of the person and the creation of a trust to manage the property of your children if you were to die before they reached majority. Creating a power of attorney will allow someone to act on your behalf with regard to certain matters in the event you become incapacitated. You can designate a health care surrogate to make healthcare decisions for you if you become incapacitated. With a revocable trust (living trust), you can provide for more comprehensive management of your property in the event of your incapacity. You can also indicate the person you would want to be your guardian if a guardianship should ever be necessary with a pre-need guardian designation.

  6. Can the person who has my power of attorney put me in a nursing home? No. A person acting under your power of attorney (your agent or attorney in fact) cannot exercise your personal rights, such as choice of residence. Even though you have designated an agent under a power of attorney, you retain all your individual legal rights, including the power to revoke the power of attorney. No one under a power of attorney can force you to do anything you do not want to do. Only the court, through an incapacity/guardianship proceeding, can take away your individual rights.

Contact Us