For some members of our society, legal protection may be necessary even after they have entered adulthood. These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves. In these cases, a guardianship may be established.
Guardians and Protected Persons
Guardianship, may also be referred to as conservatorship, is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a guardian, or custodian. There are two main types of guardianship: guardianship of the person and conservatorship of the estate or property.
A guardian is typically a family member, friend, or fiduciary appointed by the court. A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property. Additionally, a person may be placed under guardianship who is prone to fraud or undue external influence.
While guardianship does attempt to maintain the protected person’s independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual.
Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:
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Choosing residence
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Providing informed consent to medical treatment
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Making end-of-life decisions
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Making property transactions
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Obtaining a driver’s license
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Owning, possessing, or carrying a firearm or other weapon
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Contracting or filing law suits
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Marriage
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Voting
Guardianship of the Person
Guardianship of the person often relegates the following responsibilities to the appointed guardian:
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Determining and maintaining residence
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Providing informed consent to and supervising medial treatment
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Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
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Making end-of-life decisions
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Paying debts and other expenses
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Maintaining the protected person’s autonomy as much as possible
The guardian may be required to report to the court about his or her activities on an annual basis.
Conservatorship of the Estate or Property
Conservatorship of the estate or property transfers the following responsibilities to the conservator:
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Organizing, gathering and protecting assets
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Arranging appraisals of property
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Safeguarding property and assets from loss, whenever possible
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Managing income from assets
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Making appropriate payments
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Obtaining court approval prior to any sale of major assets
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Reporting to the court the estate’s status on a regular basis
Many conservatorships are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.
Guardianship of Minors
Guardianships may also be used to protect the legal rights of a minor. In the event that a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed. Unlike an adoption, under a guardianship, parents may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.
A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have a steady income, suffers from an illness, or is incarcerated. In most instances, parental approval is sought prior to any legal proceedings.
Adoption
While adopting a child can be an immensely rewarding experience, it is often accompanied by a host of legal and bureaucratic complexities. Those who approach the process with the aid of a knowledgeable attorney find that they are relieved of much of the delays, frustration and expense it often entails.
Whether you are a parent struggling to find the right home for your child, a couple looking to welcome a new member into your home or a relative hoping to assume responsibility for a minor in your family, you should contact our family law attorneys to ensure no detail is overlooked. We will take the time to explain all of the adoption issues to you, assist in the preparation of required documentation, represent you at the adoption hearings and advocate on your behalf should any challenges arise in the future.
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