The Elrod Firm

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Guardianship: Authority to act for someone BUT with court oversight

We help a lot of clients obtain guardianship over their family members, and this can be invaluable when assistance and protection is needed. The two main situations when a guardianship is necessary are when the person is no longer competent to sign a power of attorney because of health issues or when the authority given in a previously signed power of attorney is no longer enough.

Guardianship allows you to protect and care for your loved one when he can no longer do so for himself. When you’re named guardian over someone you have authority to act on his behalf, even if it’s against his wishes. This can be crucial when that person needs medical care, but because of his condition he doesn’t understand or can’t consent to it. A guardian can admit that person to treatment and can also sign documents to get assistance to pay for his care, such as Medicaid benefits. Guardianship can also be critical when someone is no longer able to manage his finances and is not paying bills or is spending or giving away assets unwisely.

However, guardianship should not be requested lightly. It requires a court procedure to establish and although it allows a guardian to act in all areas for the ward, some of those actions must still be approved by subsequent court order. Examples of these areas include:

Medical and personal decisions:

  • Consent to abortion, sterilization, psychosurgery, or removal of bodily organs, except in life threatening situations;
  • Consent to withholding life-saving treatment;
  • Authorize experimental medical procedures;
  • Authorize termination of parental rights;
  • Prohibit the ward from voting;
  • Prohibit the ward from obtaining a driver’s license;

Financial and asset decisions:

  • Consent to a settlement or compromise of any claim by or against the ward or his or her estate;
  • Pay claims made against the ward;
  • Borrow money, execute notes, and mortgage property of the ward;
  • Make gifts or disclaimers on behalf of the ward;
  • Sell, convey, release, mortgage, lease, or exchange the ward’s real or personal property;
  • Execute deed, bill of sale, assignment or other document to divide ownership of real or personal property;
  • Purchase a home for the ward; and
  • Employ professionals on the ward’s behalf.

Although these restrictions may seem like a hassle or a burden on the guardian, when a person’s authority to make decisions for himself is taken away and given to someone else, it’s nice to know that a court will always be there to look out for that person’s interests and to make sure that he’s always taken care of.

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