Elder Law Attorney for Rhode Island, Eastern Connecticut and Southeastern Massachusetts
A guardian is a person appointed by the court to make decisions about health care and personal matters for an adult who is incapacitated. In most states, statutes define "incapacitated" as being unable to make or communicate the decisions necessary to provide for the person's basic physical health and safety. A medical diagnosis, such as Alzheimer's Disease, traumatic brain injury, bi-polar disorder, or Down syndrome, is not the same as a finding of legal incapacity.
A person who makes bad decisions or who refuses to accept medical treatment or other help may not be incapacitated. A guardian can also be appointed for a minor child (under the age of 18).
Appointing a Guardian
The process begins when an attorney representing a family member or other concerned person (called the petitioner) files a petition with the court that includes facts showing the respondent is incapacitated. In many cases, the petition asks the court to appoint both a guardian and a conservator. The respondent has to be personally served with a copy of the petition, together with a notice about his or her rights. Copies of the petition and notices about the guardianship case have to be mailed to the respondent's closest relative(s) and to other people and agencies required by the law. The respondent can object to the guardianship or to the proposed guardian. Other people can also object. Objections are only filed in a small number of cases.
The judge appoints a court visitor to interview the people involved in the case and to write a report for the court. If no objections have been made and the court visitor's report supports the guardianship, the judge will usually sign an order appointing the guardian. Once a guardian has been appointed, the respondent is called the protected person.
Powers and Duties of the Guardian
The guardian has the powers that are included in the order signed by the judge. Usually, the guardian will have the power to decide where the protected person lives, to make arrangements for the protected person's care and safety, and to make health care decisions. If there is no conservator, the guardian may be responsible for taking care of the protected person's belongings and a limited amount of money.
The guardian must file a report with the court every year with information about where the protected person lives, the services that the protected person receives, and his or her physical and mental condition. If the guardian is taking care of money, the report has to include information about the money. The guardian is required to get the court's permission before paying himself or herself for providing room and board or care to the protected person. The guardian has to give a special type of notice before placing the protected person in a care facility or moving the protected person from one care facility to another.
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