Adults are presumed to be able to make their own decisions, unless otherwise determined by a court of law. If someone cannot make responsible choices due to a mental impairment, courts appoint a guardian or conservator to handle their decision-making duties. A guardianship is a relationship between the guardian and the incapacitated person, or ‘ward’. Guardians can make financial, legal and healthcare decisions for a ward, and depending on the guardianship’s terms and on state law, the guardian may need court approval for some decisions.
Incapacitation
The incapacity standard is different in every state, depending on the nature of the guardianship being sought. In most cases, a person needs a guardian when they exhibit a lack of ability to make responsible choices. A mental illness or developmental impairment is not enough for a declaration of incompetence. Your lawyer can advise you further on guardianship wills and estate planning in rapid city SD .
The Process
In many states, anyone with an interest in the ward’s well being can ask for a guardianship. Most guardians hire attorneys to file a petition in probate court in the ward’s home county, and the ward’s protections vary by state. Wards are entitled to legal representation as well, and the court will provide an attorney if the ward cannot afford to hire one.
Any competent person over the age of majority can be a guardian–spouses, family members, friends and professional guardians are eligible. During competency, a person can nominate a guardian for future needs through what is known as a durable power of attorney.
Requirements for Reporting
US courts give guardians wide-ranging authority to manage a ward’s affairs. Wards may not have the right to marry, divorce, vote, or have a driver’s license, and they lose the power to manage their money and choose their living situation and medical care. Guardians must act in the ward’s best interests, but there is great potential for abuse, and courts hold guardians accountable for their choices. Guardians must invest the ward’s funds to be used for their support, and they must also file regular reports.
Most people think that they will always be able to manage their own affairs, but some lose their decision-making capacity as they age. An attorney that handles wills and estate planning in Rapid City, SD can help you find a guardian to look after your interests.
