When you obtain permanent guardianship of an individual, you are requesting a permanent relationship between you as the guardian and the individual to be created. Permanent guardianships can often not be terminated unless the guardian or courts feel it is best. The term permanent guardianship may also be used when a person wishes to obtain guardianship of someone that is considered to be in the custody of the state, though this type of arrangement can be difficult to secure. There are many U.S. courts that will allow permanent guardianship through the court process if it is deemed in the best interest of the individual.
Once granted permanent guardianship, the new guardian will have the responsibility of providing for the individual in the same way that a natural guardian is expected to. This includes but is not limited to providing a safe environment for them to live, provide health care, and education if necessary. The guardian will also have the responsibility of making decisions on the person’s behalf medically and financially.
When May Obtaining Guardianship Be Necessary?
While adults have the legal right to make decisions on their own behalf, if someone becomes incapacitated physically or mentally, they may lack the capacity to make reasonable decisions on their own. In this instance, it may be necessary for a new guardian to be appointed. Another situation where permanent guardianship may be necessary is when there is no one available to take care of an individual who lacks the capacity to care for themselves. Permanent guardianship does not only extended to the physical health and well-being of an individual but also their estate and assets. The guardian is responsible to protect and utilize these assets for the person in a way that is consistent with their wishes and care.
There are also instances when a guardian should be put in place quickly if the individual’s capacity to make decisions has been lessened. Signs that immediate guardianship is needed include:
- The Lack of a Power of Attorney: Unfortunately, there are many people who will take advantage of those with limited mental or physical capacities, and if there is no Power of Attorney on file, the result could be dangerous. If you see that your loved one seems as though they may sign anything in front of them, they could benefit from the guidance of a guardian.
- Property or Assets Need to Be Sold: If you loved one needs to have their assets sold to obtain money for their future, it is advisable for someone to obtain guardianship so that they are not taken advantage of during the process and to ensure that the funds go where they are intended to.
- Disagreement About Residence: If your loved one is unable to take care of themselves where they are currently living, and accommodations cannot be made to keep them there safely, you may need to contain guardianship to ensure they are in a safe residence that can provide them with the care that they need.
- Major Medical Issues: If your loved one is having a difficult time understanding a major medical diagnosis or the treatment that is required, they may need a guardian to make medical decisions on their behalf. Even if they seem capable, it may be advisable as the illness can cause mental capacity to decline or make understanding information more difficult.
What Process Is Required to Obtain Permanent Guardianship?
While the process for obtaining permanent guardianship will vary from state to state, there are some basic steps that the process is likely to entail no matter the jurisdiction where guardianship is being filed for.
- You will need to file a petition to obtain legal guardianship of the individual and pay any required fees for the process.
- You may need to submit to visits, interviews, or background checks from the court if deemed necessary to determine if the action is in the best interest of the individual.
- After all of the paperwork and interview process is completed, the court will need to approve the request, and you will be responsible for signing an oath to uphold the responsibilities that come along with guardianship.
What Will Your Responsibilities Be After Obtaining Permanent Guardianship?
Your responsibilities of guardianship will largely have to do with the capacity of the person you are obtaining guardianship over. Some of the responsibilities that may come with guardianship include:
- Determining a safe place for the person to live
- Providing monitoring for their living environment and ensuring that it is safe and clean
- Being available to consent to any necessary medical treatments and procedures
- Making deiminations on how the person’s finances, benefits, and assets will be allocated and handled
- Paying any bills the person has
- Managing and maintaining any real estate or property that the person has
- Determining, consenting to, and providing monitoring if there are any non-medical services necessary for the person’s well-being, such as therapy
- Providing permission for the release of confidential financial and medical information is necessary
- Maintaining records of all of the person’s expenses
- Aiding in decisions regarding end of life care and medical intervention
- Acting on their behalf when dealing with creditors
- Helping them to perform day-to-day activities and providing them with the resources needed to have as much independence as possible
- Filing reports annually to the court regarding the guardianship status
While the guardian is responsible for most of the decisions that will affect a person’s life, they should always do their best to seek the input of the individual they have guardianship over, ensuring that their wishes are carried out as well as can be. The guardian should also make sure that their actions align with what was originally authorized by the court. Some guardians may be granted broad authority, while others may be more specified. There are some cases where the guardianship of finances and medical decisions may be split between two people, and in these situations, it is important that the guardian does not overstep these boundaries.
Who Can Be Named a Permanent Guardian?
Almost anyone can seek out permanent guardianship as long as they are properly suited to fulfill that role. The court will always side with who is best qualified to meet the individual’s specific needs. If the person has already outlined who should be responsible in the event they are capacitated, the court will usually appoint that person as long as they have the capability to perform that job. In some states, the courts may give more preference to immediate family members such as the spouse, children, or other members of the family close to the person since they are most likely to be familiar with the individual’s current abilities as well as their wishes for how they would like things handled. If neither a friend nor a relative is willing or able to be a guardian, a public or professional guardian may be appointed instead.
Will a Guardian Receive Compensation?
As a guardian appointed by the court, you will be able to receive some type of compensation for services that are provided. When it is a family member or close friend that is appointed, they will typically not charge the individual fo compensation, though they can. If a public or private guardian is appointed then the compensation will be paid from the individual’s estate. To ensure that the compensation is fair and reasonable, it will first need to be approved by the court. The court may ask the guardian to provide a careful accounting of all of the services they provide, including the tasks performed, how much time they took, and any out-of-pocket expenses that were incurred.
Do You Need a Lawyer to File for Permanent Guardianship?
While you can petition the court on your own to obtain permanent guardianship of an individual, the process can be mentally and financially draining. The paperwork and process can be complicated for those not familiar with the legal world, and there can also be certain situations that come up that you will need to address. Because of this, you can make the process significantly easier, less stressful, and more likely to come to your desired outcome, if you obtain an attorney experienced in the process of obtaining legal guardianship.
Do you have a loved one that needs a guardian, and you are ready to step up and fulfill that role? The experienced team at Lilac City Law can help provide information and assistance.
Contact us today to schedule your consultation.