Guardianship, called “conservatorship” in some states, is a legal process used to grant a person or entity the right to make decisions for another person (the “ward”), when a court determines that the ward cannot make or communicate good decisions about his/her person and/or property or may be susceptible to fraud or undue influence.
Since establishing a guardianship means depriving a person of substantial rights, courts require compelling reasons to do so.
A guardian of the estate may be appointed to make financial decisions for the person in the case of mental disability or incapacity. A guardian of the person may be appointed when a comatose or mentally incapacitated person cannot make health-related decisions for him/herself. Guardians may also be appointed for the person and the estate of minors.
Petitions for guardianship of the estate
A guardian of the estate is a person or institution appointed by the court to manage the property and finances of a minor child or incapacitated adult. Depending on the rules of the specific jurisdiction, a person seeking to be appointed guardian of the estate files a petition with the Orphans’ Court for the jurisdiction where the minor or allegedly legally incapacitated person resides. This petitioner is often a relative, an administrator for a nursing home or health care facility, or other interested person. In the case of a petition for guardianship of an incapacitated person, the petition is ordinarily accompanied by medical affidavits or other sworn statements which evidence the person’s incapacity.
Petitions for guardianship of the person
A guardian of the person is a person or institution appointed by the court to make personal decisions for a disabled person or minor, if the court finds by clear and convincing evidence that the person is incapable of making or communicating decisions regarding his or her person, giving informed consent for treatment, or making decisions about where to live. A petition for guardianship of the person is the first step in the process whereby the court appoints a guardian of the person.
Guardianship accountings
Court-appointed guardians must file an annual account setting forth a detailed description of how the ward’s assets have been sold, invested and spent on behalf of the ward during the previous year.