What is Guardianship?
Guardianship is a judicial proceeding in which a person or entity may be granted full or limited authority over an incapacitated person (ward) to promote and protect the well-being of the ward and/or the ward’s estate. The guardianship should be designed to encourage the development or maintenance of maximum self-reliance and independence of the ward by limiting the power or authority of the guardian based upon the person’s actual physical or mental limitations.
Note: Guardianship is a specialized area of practice; you are highly encouraged to speak with an experienced attorney about the requirements of appointing a guardian.
There are two types of guardianship – guardianship of the estate and of the person. The guardian of the estate is in charge of the ward’s property and finances. The guardian of the person is in charge of care and custody of the ward. Factors considered in the guardianship proceeding include:
- the extent of the ward’s diminished incapacity
- the necessity of guardianship, and
- the most appropriate person to be appointed guardian, with “the best interest of the ward” as the underlying guideline.
If the potential ward is a child, incapacity is not an issue because it is automatic under the law. Incapacitation is the threshold issue in determining guardianship for an adult since guardianship is an extreme taking of the wards rights. Only if the ward is found to be incapacitated are the other issues considered.