A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability. Most countries and states have laws that provide that the parents of a minor child are the legal guardians of that child, and that the parents can designate who shall become the child’s legal guardian in the event of their death.

Courts generally have the power to appoint a guardian for an individual in need of special protection. A guardian with responsibility for both the personal well-being and the financial interests of the ward is a general guardian. A guardian of the estate is given the legal right to determine the disposition of the ward’s property without being given any authority over the ward’s person. A guardian of the person is appointed to represent the personal well-being of the ward. If the ward owns substantial property, the guardian may be required to obtain a surety bond to protect the ward in the event that dishonesty or incompetency on his or her part causes financial loss to the ward.

If you have a Durable Power of Attorney for finances, or a Durable Power of Attorney for Health Care, you are able to appoint someone you trust to manage your financial affairs and to make your health care decisions. By appointing a competent and reliable person as your agent, it may prevent the court from having to appoint a guardian for you. The Financial Power of Attorney document can give the agent power starting the moment you sign the document, or it can spring into effect only after a doctor states that you are no longer able to handle your financial affairs. A financial power of attorney needs to be a “durable” power of attorney so that it will continue even after you become incompetent. It is very important that you give serious thought to who you are going to name as your financial agent because he or she will have complete control over your assets. On many occasions, an agent has acted improperly and taken the money of the person who entrusted them with the duty of handling their financial affairs as they have the power to act without court consent or review unless someone brings them before the court.

The health care power of attorney document is a very important document because if two doctors state that you are no longer able to make healthcare decisions for yourself, it gives your named agent the power to make all health care decisions for you, including the power to place you in a nursing home or community based residential facility, if you grant him or her the power to do so. It also gives your agent the power to discontinue tube feeding if you allow them to do so. It is recommended that you add some language to the health care power of attorney document regarding your end of life wishes. If you do not have a health care power of attorney, or if you do not grant your agent power to place you in a nursing home, then it would be necessary to obtain a guardianship for you, if it was determined that you were unable to make your own health care decisions.

If you have a question regarding an elder law issue and/or need assistance with a guardianship, for a disabled child who is turning 18, or for an incompetent adult, please give Martinson Law Offices a call.