Legal guardianship affords the named individual broad powers. There are numerous circumstances in which a legal guardian may be appropriate: for a developmentally disabled child or adult, for minors, and for incapacitated seniors. This article will deal primarily with how guardianship is invoked and problems that may arise when a senior becomes unable to care for himself. If you have a loved one who needs a legal guardian, it is important to have a College Station guardianship attorney in your corner.
What Is a Legal Guardian?
Legal guardianship is different from a guardian ad litem, who is appointed to represent certain interests of a minor child. A legal guardian has legal authority and duty of care to another person, called a ward. This power may be to the property interests of the ward or to his person or both.
The appointing of a legal guardian for a senior generally occurs following some precipitating event, such as a significant and sudden diminishment in the health of the individual or an accident. The guardian is appointed to care for the personal and/or financial needs of the ward.
Determining That a Person Is Incapacitated
It is necessary to make a determination in court that a person is in need of being appointed a legal guardian. This determination will be made by a judge at the end of an evidentiary hearing. It is important to note that such a determination often creates considerable contention, particularly by individuals who are would-be heirs to the estate of the ward. In a sense, then, the proceeding is a kind of pre-probate judgment. For instance, siblings may vie with each other for obtaining the power entailed in the guardianship. In this way, lawsuits can arise out of the evidentiary hearing. It should be clear, then, why having an attorney is so important.
The determination occurs when someone—a family member, clergy member, physician, or other professional deems that the would-be ward is incapacitated. When the judge renders his decision, he may consider a lesser alternative, such as a power of attorney or health care proxy, if appropriate. If the judge decides to appoint someone as guardian, as mentioned, he will determine the extent of the guardian’s powers.