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Guardianship Case Studies

Guardians are appointed by a probate court when a person has been determined to be incompetent. In determining who should be appointed, the probate court first looks to persons who may have been previously nominated by the incompetent person, in a power of attorney document. If the incompetent person has not nominated someone to serve in this capacity, then the court first looks to family members to see if there is someone who is willing to serve and is appropriate. If there is no such person, or if there is conflict among the family as to who should serve, then the probate court will appoint an independent third party, usually an attorney, to serve in this capacity.

The following are several representative cases:

  • A woman is in an auto accident and while being treated at the hospital is found to have cognitive issues. The hospital doctor recommends to her family that a guardian be appointed to handle her health care and financial needs. The woman has six children and they cannot agree who should handle her affairs. An application is filed by several of her children seeking to be appointed her guardian. There is no agreement among the family as to who should be appointed. Due to the conflict among the family members, the probate court appoints an independent attorney to serve as guardian of both person and estate. The court reasons that conflict between the family will not serve the woman's best interests.
  • Husband and wife have no children. Wife becomes ill and passes away. Following the wife's death, it becomes apparent to the husband's friends that he is unable to care for himself. For example, they find him trying to eat frozen dinners, which have not been heated up. He appears unkempt and confused. A referral is made to Adult Protective Services alleging that the husband appears to be unable to care for himself. Following their investigation, Adult Protective Services concurs that the husband is in need of a guardian to make health care and financial decisions on his behalf. Adult Protective Services can locate no relatives and thus refers the matter to probate court requesting the appointment of a guardian. Since no family can be located, the probate court appoints an independent attorney to serve as guardian of both person and estate.
  • Woman resides in her home alone. Neighbors have concerns that she is confused and contact Adult Protective Services. They confirm that the woman lives alone, has dementia and is in need of a guardian. Family cannot agree on the best care plan for the woman and do not get along with each other. The court appoints an attorney to serve as an independent guardian. In her capacity as guardian, the attorney goes to the house to meet the woman and is let in. The woman states that her son says not to let anyone in, and it is clear that the son has been monitoring the woman's actions by way of closed circuit cameras. Plans are made to move the woman to a more secure assisted living facility. While these plans are being made, the woman wanders outside the house and cannot get back in. The neighbor calls the son who picks up his mother and takes her to his home, refusing to release her to the custody of the guardian. A court order is procured requiring the son to deliver his mother to the assisted living facility and authorizes the local police to assist with her recovery.
  • A man prepares his will and also prepares durable power of attorney documents for health care and finances. His power of attorney documents names his daughter to serve as his agent to handle his health care and finances and also nominates his daughter to serve as his guardian of person and estate should he need one in the future. The power of attorney documents are "durable" meaning that they are intended to be valid even if the person making them becomes incompetent. Subsequently, the man becomes unable to care for himself. Although he has power of attorney documents which would permit his daughter to act on his behalf, he is uncooperative and is insisting upon still making decisions for himself, However, his decision-making abilities are poor, and he is unable to properly manage his finances. In order to solely control the decisions that need to be made for her father, the daughter files an application to be appointed his guardian. Due to the fact that she was previously nominated by the father, the probate court appoints her to serve as guardian.
  • A woman is riding her bicycle when she is hit by a truck and suffers a traumatic brain injury. She has no power of attorney documents. Her mother is appointed by the probate court to serve as guardian of her person and estate. However, the mother cannot obtain a bond required by the court to secure her services as guardian of estate. The woman locates an attorney who can post the requisite bond, and the attorney is thereafter appointed guardian of estate. The mother continues to serve as guardian of person and is responsible for all health care decisions for her daughter. The attorney, as guardian of the estate only, handles the woman's finances including the sale of her home, secures Social Security Disability and Medicaid benefits for the woman and also establishes a special needs trust for her benefit.

For More Information About Guardianships

If you wish to apply to serve as guardian for a family member, you should consult with an attorney. An attorney can advise you of the application process and the obligations that must be fulfilled by a person appointed guardian of person and/or estate. An attorney can also more fully advise you about the circumstances of your particular situation.