Once a person becomes a guardian, they should be aware of their responsibilities. Since the ward loses significant rights, guardians must promote their autonomy to the fullest possible extent. Guardians must make decisions, such as moving the ward across states, in the ward’s best interests.
Legal Guardianship for Adults With Disabilities
There are several types of guardianship. An adult may require assistance across domains or may only need help in certain areas. In a plenary or total guardianship, a person may have more responsibilities than in a limited guardianship, in which the ward retains more rights.
- In guardianships of the estate, or conservatorships, responsible individuals handle money for others.
- Guardianships of the person support personal affairs, such as education, housing, and health care.
- Plenary guardianships provide total assistance.
- In limited guardianships, the substitute decision-maker only helps with particular decisions. A court may order a limited guardianship when an adult’s incapacity may only affect certain decisions. It is the least restrictive arrangement.
Effect on the Ward
In many cases, those subject to guardianship no longer have significant rights, which can vary depending on how restrictive the guardianship is. In some circumstances, lost rights include:
- Voting
- Marriage
- Choosing where to live
- Providing medical consent
- Deciding whether to extend their lives or die naturally
- Holding a driver’s license
- Controlling, buying, or selling property
- Owning a firearm or weapon
- Entering into contracts, such as leases
Guardian’s Responsibilities
Making decisions for those who cannot, guardians must act in the best interests of their charges and fully support their independence. Depending on the terms of the order, responsibilities include arranging appropriate housing, education, and access to medical care. States can also require guardians to take classes.
Although the guardian’s controls can extend across many domains of the ward’s life, the guardian’s power stems from the court. Individuals exercising authority may face sanctions if the court has not approved a particular action.
Many guardianship orders allow a competent adult to manage the finances of an incapacitated individual’s — to purchase food and pay bills, for example. In many cases, however, the court does not give custodians complete powers.
- A guardian may lack the power to sell the adult’s property, such as a home. To do so, the guardian would need special permission.
- Caregivers also typically cannot reimburse themselves from the funds of the person with a disability without special permission from the judicial authority.
Annual Report
Protectors must file a yearly report. Depending on the guardianship type, this document may update the court on factors such as the following:
- how the adult with a disability is doing
- where they currently live
- their financial status
It is crucial that guardians remember to keep good records and submit the report each year. Otherwise, they could face judicial reprimand and removal.
Transferring Guardianship Across States
Sometimes, the responsible person may wish to transfer the ward to another state to receive care. Moving must not simply constitute a matter of convenience for the caregiver, but must fulfill the ward’s best interests. The custodian must have reasonable and adequate plans for the ward’s care in the new location.
Before the majority of states adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), transferring guardianships was complex. Since state laws govern guardianships, each state had its own rules. Streamlining the process, the Act makes moving those under guardianship easier by honoring the rulings of other jurisdictions. According to Special Needs Alliance, 45 states have enacted the UAGPPJA.
Similar to when an individual petitions for guardianship, they must ask the court to transfer the guardianship to a new jurisdiction and give notice of the move to all interested parties. If a person disputes the relocation, the court holds an evidentiary hearing to determine if moving aligns with the ward’s best interests.
Removing Guardians
When protectors fail to uphold their duties, the court may strip them of their authority and appoint another guardian. Grounds for removal include:
- physical abuse
- emotional abuse
- financial abuse
- failure to meet procedural standards, such as neglecting to file the annual report
Terminating Custody
Capacity can fluctuate over time. In some cases, incapacitated people regain the ability to make decisions. Other times, a ward may dispute guardianship. When a person wishes to end a guardianship, they can ask the court to terminate it.
Since wards sometimes face bias in legal proceedings, ending a guardianship can be challenging. Although individuals can represent themselves pro se, or without an attorney, a special needs attorney can help those subject to guardianship restore their rights.
Speak to your special needs planner to learn more about transferring or ending guardianship of an adult child with a disability.
This information is not intended to be a substitute for specific individualized tax, legal or estate planning advice as individual situations will vary. Neither Royal Alliance Associates, Inc., nor its registered representatives or employees, offer tax or legal advice. As with all matters of a tax or legal nature, you should consult with your tax or legal counsel for advice.
Securities and investment advisory services offered through Royal Alliance Associates, Inc. member FINRA/SIPC. Royal Alliance Associates, Inc. is separately owned and other entities and/or marketing names, products or services referenced here are independent of Royal Alliance Associates, Inc. Special needs consulting services are not offered through Royal Alliance Associates, Inc.
Content provided by the Academy of Special Needs Planners, Copyright 2023