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Understanding the basics of guardianship

What exactly is a guardian? Who needs one? How do you ask the court to appoint one (and do you want to be given the job)?

These are the most common questions that people have about guardianship -- and the answers you need.

What is a guardian?

A guardian is appointed by the court (or chosen by the individual in anticipation that guardianship may someday be necessary) to handle another person's decisions.

That power may be limited only to someone's financial affairs, their medical issues or over their entire person.

Who needs a guardian?

Anybody who can't handle his or her own finances, medical decisions or is generally mentally or physically incapacitated in some way that makes him or her particularly vulnerable to abuse.

The person needing a guardian could be someone like your elderly father -- whose generosity is legendary and being taken advantage of by an unscrupulous cousin or a devious niece.

It could also be your 18-year-old autistic daughter who needs a guardian in order to keep her from placing herself in danger, giving away her Social Security benefits to "friends" and so on.

How do you become a guardian?

Sometimes the road to that role is easier than others. If your father named you to be his guardian in the event that he became unable to manage his own affairs, it's pretty easy to tell that the provision kicks in if he's lying unconscious in a hospital bed.

If he's simply aging and showing signs of dementia, however, you may have to get medical support to have the guardianship powers kick in. It may also come down to a legal battle -- you can ask the court to hold a competency hearing to determine if your father needs a guardian. Your father, however, can fight back by presenting evidence of his own that he's still competent (even if you dislike his choices).

Do you want the job?

Frankly, being someone's guardian isn't always easy. There's a lot of responsibility that goes with the job -- you are legally accountable to the court for this person. On the other hand, you are going to care more about your loved one's life and happiness than a court-appointed stranger.

Guardianship is part of long-term care planning for many families, for many reasons. An attorney experienced in estate planning and guardianship can provide more information so that you can make informed decisions.

Source: FindLaw, "Guardianship Basics," accessed Nov. 10, 2017

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