When Decisions Matter.

When is a Guardianship Necessary?

A guardianship is a proceeding in which the court appoints an individual or entity to assist an “incapacitated person”, that is, an adult who cannot receive or evaluate information effectively or whose ability to communicate decisions is impaired so that their health, safety, rights or finances are at risk of harm. The circumstances under which a guardian may be appointed vary widely.

Guardianships are not reserved for “old” people who are suffering from dementia or Alzheimer’s, although many people with those conditions may be in need of a guardian. A guardianship may be necessary for an 18 year old suffering from a disabling injury or for a happily married 45 year old suffering with a sudden, debilitating illness.

Once a person reaches adulthood, (eighteen in Pennsylvania), no other person has the legal authority to make decisions for him or her. This is true even if the person is married. Therefore, if an individual is unable to make or communicate responsible decisions regarding his health, safety or finances, he or she may be in need of a guardian.

One does not have to be totally incapacitated to need a guardian. The court is required to determine what abilities the person has, and can only appoint a guardian to assist in those areas in which the individual needs help. A guardian who is appointed to assist with a specific objective is called a “limited guardian”. A guardian who is given broad authority to act for the incapacitated individual is called a “plenary guardian”. A guardian can be appointed just to make personal decisions or just to make financial decisions, or both.

Even if a person is incapacitated, a guardian may not be needed if he or she has done the proper advanced planning. A person who is competent, that is, not incapacitated, may execute a durable power of attorney. This documents allows the person to appoint an agent, known as an “attorney in fact”, to manage his or her affairs and make medical, financial and certain other personal decisions for him or her. Done properly, and prior to incapacity, a power of attorney can often take the place of a guardianship when the need for one arises.

When Decisions Matter, contact our Estate Planning Attorneys with questions about guardianships, powers of attorney, or other disability planning measures.

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