Guardianship of an Adult

If an adult becomes unable to handle personal or financial obligations, assistance of a guardian is imperative. A person incapacitated by age or health problems may come under the care of a legal guardian or conservator. This relationship is often established by court order when an adult becomes unable to deal with his or her personal affairs, but in some instances a guardian may be pre-selected by the individual directly concerned.

Initiating such an action and taking on this responsibility is a serious matter in need of careful consideration. A petition must be filed with a court providing evidence that guardianship is necessary. If appointed, the guardian will be subject to court supervision and will be required to make periodic financial and personal reports to the court.

Although similar, guardians and conservators have different responsibility. A conservator is primarily responsible for making all financial decisions. In contrast, a guardian is responsible for making decisions regarding the individual’s physical needs, which may include where to live and which doctor to visit.

If you have a role in selecting or approving a guardian, serious thought should be given to the following questions:

  1. Does the candidate have a reputation for honesty, integrity, and timeliness?
  2. Has the candidate ever been convicted of a crime?
  3. Has the potential guardian managed his or her personal matters in a responsible manner?
  4. Does the candidate have educational, professional, or business experience that lends itself to the performance of the duties of a guardian or conservator?
  5. Does the candidate have the time to devote to the required duties?
  6. Is the potential guardian in good health?
  7. Does he or she have a history of substance abuse?
  8. Is the candidate likely to engender the respect, support, and cooperation of all persons affected by his or her decisions?
  9. If the ward is incapacitated, did the ward previously express his or her wishes as to whom to appoint as guardian?
  10. Although not required, is the potential guardian related by blood or marriage to the ward, or does he or she know the ward well enough to carry out that person’s probable intentions?

Ideally, consideration should be given to appointing an agent through a durable power of attorney before it becomes necessary to appoint a guardian. This allows the decision to be made by the person who may someday need someone else to handle his/her affairs without the court making the decision instead.

Attorney Davi M. Peters practices in the area of estate planning and can be reached at dpeters@lawyersnh.com or (603) 883-0797 extension 523.