Estate planning is all about securing the financial future of yourself and your loved ones after you pass away or become incapacitated. The latter situation is often overlooked but is equally important: There may come a time when you or your family member are unable to take care of their own financial well-being while still alive, and your best option may be to appoint a trusted advisor to manage affairs as necessary. Additionally, if you have a loved one who, due to a developmental disability, is unable to manage their own affairs, appointing a guardian may be the best way to ensure that they are well taken care of.
An experienced Vancouver guardianship attorney can help you and your family determine whether a voluntary guardianship is the right step to protect your loved ones, their medical care, their property, and their finances. John Lutgens is ready to guide you through the guardianship process and ensure that your family is cared for and protected.
What is guardianship?
A guardian is a person or organization appointed by the court to manage the affairs of another, called the ward or incapacitated person. A guardianship is a legal relationship between a competent adult and the ward. Guardians may be appointed for adults when the ward has a disability that causes incapacity. A person may require a guardian if they have a disability including:
- Mental deterioration
- Physical incapacity
- Mental illness
- Developmental disability
The guardian will assume the rights of the incapacitated person, making decisions about aspects of their daily lives and their property as well as decisions concerning medical care and finances. Guardianships can be broad or limited, and the actions of a guardian are reviewable by a court. A guardian can be appointed for a person with a developmental disability at the time they turn 18, or for a person whose mental capacity has deteriorated over time due to illness or simply by aging.
Steps to guardianship
In order to appoint a guardian, a court must be presented with a petition. A petition can come from any interested party, such as a family member, and the interested party need not seek to be appointed guardian. The petition will request the court to determine if the person is incapacitated and, if so, to appoint a qualified guardian.
Before a guardianship is established, several steps must be taken:
- The court must designate a guardian ad litem to conduct an investigation and present findings to the court;
- The guardian ad litem must obtain a statement from a physician or psychiatrist; and
- There must be a hearing.
What are the powers and limits of a guardian?
Unless the court sets limitations on the guardianship, the guardian has near-total authority over the ward’s personal and financial decisions. This includes determining who will take care of the person, what happens to their property and finances, the ward’s living situation, and making medical decisions on their behalf.
Courts are able to establish limited guardianships as well, where a person has only a limited incapacity or is only expected to require the help of a guardian for a limited amount of time. The court can lay out specific powers for a guardian or establish a time limit if the ward is expected to gain full capacity after a certain amount of time. Guardianships are meant to be limited to what is necessary to meet the incapacitated person’s needs and should not take away a person’s right to make decisions or manage affairs they are capable of handling.
Choosing a guardian
The court may technically appoint any competent adult who is of sound mind, has not been convicted of a serious crime, and meets other certification requirements as required by the specific locale. Courts can also appoint co-guardians.
Courts generally prefer to appoint a guardian who plays a significant role in the incapacitated person’s life, such as a family member or close friend. The guardian should be someone who is willing and able to take care of the ward in accordance with their needs and preferences. Guardianship is a position of trust and integrity, and choosing a proper guardian is not something to be taken lightly.