When an elderly or disabled individual is incapable of making decisions, a guardian can assume the responsibility for the incapacitated person’s health, welfare, and safety. Some examples of individuals who may need a guardian are those incapacitated by mental illness, physical illness or disability, chronic drug or alcohol abuse and those with developmental disabilities. Usually, a power of attorney is used when the elderly or disabled are still able to make their own decisions but a decline in health or mental functioning can require the need for more oversight and this is when choosing a guardian can be a wise choice.
In some states like New Jersey, there is a state agency such as the New Jersey Guardianship Services Bureau which can help with the process of guardianship when there is no family. To be granted guardianship, the guardian will need to file a complaint with the Superior Court. The Surrogate’s Court will determine whether or not a guardian is necessary and if so, the guardian must appear in Surrogate’s Court to qualify as a guardian before assuming the role.
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A guardian will often oversee an individual’s interests through one of two forms of guardianships. There is general guardianship where the guardian needs to assume responsibility because an individual is incapable of making decisions. There is also another type, limited guardianship, and this applies in cases where an individual is found to be capable of making some decisions regarding legal, financial and medical issues. For example, a guardian may be able to oversee medical decisions but not finances.
Once a guardian is established, he or she will be expected to allow the individual to maintain as much independence as possible. The guardian must also take care to make decisions which do not cause harm. In a general guardianship, the guardian should make decisions based upon what the individual would have preferred before becoming incapacitated. In a limited guardianship, the guardian should talk with the individual to understand what he or she prefers and to make choices to honor these wishes. If the guardian must make decisions for someone who has been disabled from birth, special emphasis should be placed upon the best interests of the individual. Again, considering all options and choosing the one causing the least harm is preferred.
The responsibilities of a guardian often include making medical appointments and following up on treatment. Any choices should still follow the guideline of making sure an elderly or disabled individual retains as much independence as possible. This requirement can mean the guardian needs to choose the least restrictive options available related to the care of a person.
Becoming a guardian for an elderly or disabled person is a serious responsibility and care should be taken to make sure the guardian takes into consideration the needs and desires of the individual and to ensure he or she retains independence.
If you do agree to take on these responsibilities, you should make sure you are protected by carefully drafted legal documents that will stand up to family conflict. Contact us today for a consultation with an experienced estate planning attorney at Bratton Law.
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