Frequently Asked Questions

The law presumes that an adult 18 years or older is capable of managing his/her own affairs. In order to have a guardian appointed in most parts of the United States a person must demonstrate to lack the capacity to make or communicate responsible decisions concerning personal or financial matters. In most states, the lack of capacity requires a cause with the decisional impairment being the result. Mental illness, a developmental disability, a physical incapacity, chronic intoxication, or even advanced age, are identified by various states as the basis for the lack of decisional capacity, but those diagnoses alone are not cause for the guardianship. The laws of the State in which the ward resides must be reviewed to learn the specifics governing the definition of an incapacitate.

The fact that someone has some sort of diagnosis or disability does not automatically equate to the need for a guardian. The primary test for determining the need for guardianship focuses on the ability to make decisions, and to communicate the decisions once made. The essence of decisional capacity, which equates to the guardianship determination, may be encompassed in the following questions: Does the individual understand that a decision needs to be made? Dies the individual understand the options available in making a decision? Does the individual understand the potential consequences of the decision and options? Can the individual direct the decision to appropriate parties? The areas of decision making on which most guardianships are focused are living conditions, medical care, vocations and educational services, ancillary professional services, caring for dependents, and managing finances.

Before starting any legal proceedings a report must be obtained that certifies that the person has a disability, and because of that disability, needs a guardian. The requirements of the content of the report vary greatly. The report should focus on the functional abilities of the person. At a minimum the report should: provide a description of the nature and type of disability and an explanation of how that disability impacts the individual's decision making; offer an analysis and results of evaluations of the individual's mental and physical condition, educational level, adaptive behavior and social skills as appropriate; state an opinion about the need for guardianship, and provide supporting reasons for this opinion; and recommend suitable living arrangements and treatment or habilitation plans. This report should accurate reflect the skills and abilities of the person as well as the deficits and problems. Finally the report must be signed by all involved in the evaluation. Two Physician's or Psychologist's Certificates must also accompany the evaluation. The report must be timely and meet a time frame that is usually stated in the statute A petition, which is the official request for the appointment of a guardian, will be prepared and signed by someone alleging incapacity, and the need for guardianship; it is then filed. A hearing date will be set and usually a Summons is served. The summons is the official notice to the person with disabilities about guardianship proceedings, the time, and place. Notice of the date, time and place of the guardianship proceedings is given to any interested parties, family members, proposed guardian, etc., in order that they can be present at the hearing if they choose. A hearing will be held and evidence presented about the need for guardianship. The potential ward is usually represented by an attorney during the hearing process. Although, at times, the hearing may seem to be quite informal, this is an adversarial process and the petitioner must clearly demonstrate to the court that the individual needs a guardian of some sort. The above includes very broad and general descriptions. During the appointment proceedings of a guardian the alleged disable person has specific due process rights that are enumerated in the various state laws. Although an attorney may not be required to establish guardianship in some areas, this is a legal process. It may be best to consult an attorney familiar with guardianship proceedings and disability.

In most states, there is the mechanism for an emergency appointment of a guardian for a specific purpose. They are usually time-limited and not renewable without a full guardianship proceeding. There is usually a cursory hearing about the specific issue and a guardian's authority is only in the areas of the issue presented. Usually this is not a full finding of incapacity, and a full hearing on the guardianship must be scheduled or the emergency/temporary guardianship expires.

Guardianship is a highly intrusive form of advocacy and should be used only as a last resort when all other alternatives have been examined. Some of the alternatives to guardianship may be Powers of Attorney for Financial Management or Durable Powers of Attorney for Health Care and Financial Decisions, Living Wills, trusts, case/care management services, Representative Payee and Health Care Surrogate acts. Individuals may get additional information from the local Bar Association and the local social services agencies.

The following qualification for guardians are fairly universal: Individuals - 18 years of age, not convicted of a felony, and not adjudicated disabled. Non-related professional Guardian - 18 years of age, not convicted of a felony, and not adjudicated disabled. A public or private institution, not supplying housing. Financial institutions (for estate matters only).

This also varies from state to state but generally: Person - makes decisions about person, programs, medical care, residence, release of confidential information. Property - manages and makes decisions about financial matters, benefits, real estate and other property often referred to as conservator. Plenary - means total and can be attached to guardianship of person or property or both. In most states there are exclusions to plenary guardianship, which may be residential placement, certain medical procedures, and sale or transfer of property. The guidelines again are in the state laws regulating guardianship. Limited - means that the guardian has only the authority specifically given by court order. The ward keeps all other decision-making rights not specifically outlines by the court order. In most states the appointment of a limited guardian does not equal a finding of legal incompetence. Successor - the court appoints another guardian when the original guardian dies, resigns, or is removed. Usually the successor has the same powers of the original guardian.

Usually only temporary or emergency guardianship may be appointed quickly, meaning a few days. Generally most guardianship proceedings take from an absolute minimum of two weeks to as long as two months.

Guardianship is normally a long-term relationship. The court may modify, revoke, or terminate the guardianship if the ward's ability to make and communicate decisions is demonstrated to the court. The procedures governing the modification of guardianships again may vary but each state addresses the issue. In Frederick County, the Adult Disabled Review Board meets quarterly to review each ward's case individually for appropriateness of guardianship and the need for continued guardianship services.