Legal Corner: In cases of incapacity, guardianship is a helpful tool

Legal Corner: In cases of incapacity, guardianship is a helpful tool

In our free country, we all have the right to make our own decisions regarding the way we live our lives and handle our own affairs. We determine where we live, how we spend our money and with whom we associate.

But as a result of illness, old age or incapacity, what may happen when you can no longer handle your own decision-making, handle your own money or make your own health care choices?  Who can step in to help, and how are they empowered?

There can be a number of scenarios that could rob a person of their decision-making abilities. The most common is advanced age, where a senior no longer possesses his or her full mental faculties and can no longer handle money and other affairs.

A person could fall ill or have a serious accident that similarly takes away his or her abilities, either temporarily or permanently. Or a child or adult may have special needs and require a parent or another to officially act on his behalf.

In all of these situations, if no proper estate planning had already been done and no valid powers of attorney are in place, it may be beneficial to seek a guardianship.

This is a legal relationship in which a responsible and capable person, known as a guardian, is given the power to handle the needs of her ward, the person who cannot handle his or her own affairs.

Usually supported by a medical assessment prepared by a physician, the matter will quickly come before the local probate court for hearing.

Once the guardian applies, qualifies and is duly appointed by the court, she will have authority to oversee and manage all matters relating to the ward.

She will have power over the ward’s money and expenditures, his health care decisions, residential issues, and even with whom the ward may associate.

In essence, it is virtually akin to a parent-child relationship. Of course, guardianships can be tailored by the court to meet the needs of the ward in each individual case, with the guardian’s powers specifically limited or increased as necessary and appropriate.

Along with handling the ward’s money, health care and related affairs, the guardian has the additional obligation of reporting to the court on a yearly basis the health status of the ward as well as file an accounting of what has been done with the ward’s money and how much is remaining.

This level of court supervision protects the ward from mismanagement of his finances as well as ensures that the guardianship is still needed and properly maintained on a yearly basis.

The relationship between the guardian and ward is a close one and can continue for many years. The guardianship will, of course, end upon the death of the ward, the resignation or removal of the guardian, or in cases of temporary illness or incapacity, when the ward recovers and is able to once again resume handling his own affairs and health care decisions.

If a situation should arise in which your elderly parent can no longer competently handle his or her own life issues, know that there is a remedy where you can step in to care for their needs, be they financial, health-related or residential.

The process may seem daunting, but with the help of an experienced attorney, a guardianship can be quickly established to empower you to manage their affairs and be sure their needs, whatever they may be, are always met in a competent and caring way.

Marc Page is an attorney with a general law practice in downtown Westerly. He is licensed in both Rhode Island and Connecticut and can be reached at 401-596-1726.



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