Guardianship

What if it is too late for your family member or friend to plan for incapacity?

An interested person can apply to the Probate Court to be appointed as guardian of the person or estate of an incapacitated person (“ward”).  A guardian of the person is responsible for the physical well-being of the ward.  A guardian of the estate is responsible for the ward’s financial affairs.

How is a guardianship established?

An application for guardianship of the person and/or estate of the proposed ward is filed with the Probate Court.  A letter describing the proposed ward’s incapacity and signed by a physician who has examined the proposed ward within 120 days prior to the filing of the application for guardianship must also be filed with the Court.  The proposed ward must be personally served with a copy of the application for guardianship.  The Court will appoint an attorney ad litem to represent the proposed ward in the guardianship proceeding.  A hearing will be held at which the Court appoints a guardian of the person and/or estate.  In order to qualify as guardian and receive letters of guardianship, the guardian must file an oath and post a bond.

What are the duties of a guardian of the person?

A guardian of the person is responsible for the physical well-being of the ward.  The guardian  must make sure that the ward has adequate food, clothing, shelter, medical care, etc.  The guardian must also file an annual report with the Court regarding the location, condition, and well-being of the ward.

What are the duties of a guardian of the estate?

A guardian of the estate is responsible for prudently managing the financial affairs of the ward.  The guardian must take control of all of the assets, must deposit cash assets in FDIC insured accounts, must make certain that all real property and tangible personal property is properly insured and maintained, that all taxes and other proper claims and debts are timely paid, etc.  The guardian of the estate must also file an inventory and annual accounting with the Court and seek Court authority to expend funds on behalf of the ward and to sell any of the ward’s property.