Developmentally disabled adult children and elderly family members often need a guardian to assist them due to some form of incapacity, whether the incapacity be a physical impairment, mental impairment, or both. The incapacity may be either total or partial. In some situations, an incapacitated person placed under a guardianship may lose certain legal rights, such as the right to vote and the right to drive a car. Accordingly, a court will never create a guardianship if there are less restrictive alternatives available. However, in some cases, a guardianship is the most appropriate option.
There are two types of guardianship:
the Guardianship of the Person provides authority for caring for the personal needs (such as food, shelter and clothing) of the incapacitated person;
the Guardianship of the Estate provides authority for managing the financial assets of the incapacitated person.
A Court may create a Guardianship of the Person, a Guardianship of the Estate, or a Guardianship of the Person and the Estate, depending on what is in the “best interest” of the incapacitated person. The legal means for establishing a guardianship is a complex process that often requires a medical exam by a licensed physician as well ongoing annual reporting requirements to the Court after the guardianship is established. As there often are alternatives available that are not as restrictive as a guardianship, it is advisable to seek the advice of an attorney before attempting to establish a guardianship over someone who appears to be incapacitated.
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