FAQ
Q: What is a guardianship?
A: A guardianship proceeding can occur with both adults and children. These are proceedings where one person petitions to have care and control over another person, or "ward". An example of when a guardianship proceeding is appropriate is when an elderly person is unable to make medical decisions anymore, requires treatment, and will not agree to the treatment. Under these circumstances, a petition for guardianship can be filed seeking to appoint a person or organization as guardian to make decisions for that ward. If granted, the ward will no longer be permitted to make decisions for themselves anymore, including whether or not to consent to medical care. Guardianships can also be filed in circumstances where a young parent is unable to care for their child and a grandparent wants to assume care of the grandchild. Other circumstances where guardianships are appropriate are when minors with deficits, such as mental disabilities or mental retardation, and who are unable to care for themselves and are about to turn 18. A parent or guardian can file for guardianship over the child so that they are still able to make decisions for the child after the child becomes of age.
Q: Instead of paying an attorney to create an estate plan, why don't I just wait and allow my loved ones to file for guardianship over me if I become too sick?
A: A guardianship does not replace good estate planning, which includes powers of attorney, living wills, and testamentary wills. First, filing for a guardianship is not a quick process. A guardianship requires a court hearing, and will be scheduled according to the Court's availability. Second, a guardianship proceeding can be a contentious process. After all, this process seeks to take away someone's constitutional liberties, such as where to live and what healthcare treatment they are to receive. Because of that result, the Court treats such a petition very seriously, appointing counsel for the ward, and requiring the petitioner to prove beyond a reasonable doubt that a guardianship is warranted. Do not put your loved ones through such a process. They will likely undergo testifying in court and be cross-examined by an attorney. It is not pleasant, but is, instead, highly stressful. Finally, guardianships merely provide the guardian with the power to make decisions, whereas good estate planning provides your loved ones with information such as your wishes regarding health care.
Q: My husband now lives in a nursing home. We have a durable power of attorney for healthcare and a financial power of attorney. But, in order for my husband to stay in the nursing home, I have been told that I need to have guardianship over him. Why?
A: Every nursing home and care facility has its own policies. The concern for the nursing home is what to do when your husband tires of living in a restricted environment and wants to leave. Although you have 2 powers of attorney, your husband can at anytime revoke these documents. The only way to make sure your husband cannot leave the nursing home is to have a guardianship over him, and have the guardian instruct the nursing home not to release him in the event he asks to leave.
Q: When my husband and I talked to an estate planning attorney, we were told that we could include a provision making a guardianship proceeding unnecessary. Is that true?
A: Yes, in part. It is now possible to include a specific phrase that will allow the healthcare provider with the consent of the health care power of attorney to treat you over your objection. However, it is unclear how many health care workers will honor this document.