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Jenkins Fenstermaker, PLLC

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By Anna Melissa Price Of Jenkins Fenstermaker, PLLC on 10/22/2019
Legal Guardianship of an Adult: What You Need to Know

Guardianship is a means by which you can become legally responsible for managing the care of a disabled or incompetent adult. Guardianship grants only specific rights and responsibilities related to the care and concerns of that individual. Understanding what guardianship entails and familiarizing yourself with the process to obtain it are essential to successful transitions in these situations.

How to Pursue Legal Guardianship of an Adult

There are multiple types of guardianship for adults, and the related requirements and processes to become an adult guardian vary by jurisdiction. If you believe guardianship of an adult relative or friend in West Virginia (WV), Kentucky (KY), or Ohio (OH) is needed, a WV guardianship attorney licensed in all three states can help you evaluate the types of adult guardianship, consider alternatives to guardianship, and navigate the legal process of obtaining guardianship.

Types of Guardianship for Adults

Guardianship of an adult is a court process in which you may request to be officially name, or appointed, as the person legally responsible for the care of another. Because adult guardianship is only ordered when a person cannot legally take care of him- or herself, the court must first find the person to be disabled or incompetent

The type of guardianship ordered depends on the facts of the particular case and the extent of the person’s disability. General types of guardianship for adults include the following:

  • Full guardianship with personal and financial powers;

  • Guardianship of the person;

  • Guardianship of the estate (called conservatorship in some states);

  • Limited guardianship or conservatorship; and

  • Interim or temporary guardianship

The extent of guardianship granted determines the powers and responsibilities of guardians. In a full guardianship, the guardian is responsible for the protected person’s care, including medical and health care issues, living arrangements, social and recreational fulfillment, food and transportation needs, and sometimes financial matters. Other forms of guardianship assign responsibility only for specific aspects of the protected person’s life and assets.

Courts and county clerk’s offices can supply forms and information regarding the guardianship process but are generally barred from offering legal advice. In WV, the Department of Health and Human Resources (DHHR) recommends seeking the counsel of a WV guardianship attorney if you require assistance in evaluating options and managing the legal details of guardianship.

What Is the Difference between Guardianship and Conservatorship?

In states that distinguish between guardianship and conservatorship, the two roles differ in that a conservator is granted authority over and responsibility for only the financial matters as opposed to the care of the person. Such financial matters could include controlling assets, handling income, budgeting, making payments, and managing property or investments.

In WV, KY, and some other states, conservatorship is the term applied when a person or entity is appointed as guardian of only a person’s estate. In other words, the conservator manages the financial affairs of the incapacitated person. In OH, conservatorship is a voluntary option. If or when an individual is deemed incapacitated, the conservatorship is terminated and full or partial guardianship may be required to retain management of assets and property.

How to Obtain Guardianship of an Adult

Guided by the state’s guardianship or conservatorship statutes, local courts grant the specific rights and responsibilities of adult guardians. The court with jurisdiction is usually the probate or family court in the incapacitated person’s county of residence. 

To be appointed as the legal guardian of an adult, the court must first find that the individual you propose to protect is incompetent under the law. If the court finds the person to be incompetent, you may file a petition requesting to be appointed as the guardian or conservator, as the case may be. 

Courts are responsible for protecting the best interests of the incapacitated individual and must evaluate the proposed guardian’s ability and willingness to provide the required services and accommodations. A court’s evaluation can include, but might not necessarily be limited to, the following aspects of the proposed guardian’s life:

  • Relation to or relationship with the incapacitated person;

  • Personal finances and resources;

  • Health and well-being;

  • Trustworthiness;

  • Conflicts of interest, if any; and 

  • Education

The duties and responsibilities of a guardian can be substantial and require a serious commitment. Once a guardian is appointed, that person must file regular reports with the appropriate court of jurisdiction. 

Legal Options and Alternatives to Guardianship

In some cases, other legal means can be used to acquire rights and privileges of care over an adult in need of assistance in lieu of guardianship or conservatorship. The National Council on Disability (NCD) advocates for the rights of the disabled and recommends less-restrictive alternatives to guardianship when feasible. The alternatives to guardianship proposed by the NCD include powers of attorney (POA)  and special needs trusts for financial matters; HIPAA permissions, medical POA, advance directives, and surrogacy for health care decisions; educational representatives in applicable situations; and supported decision-making.

An experienced lawyer can assist families and friends in finding the right path to protecting disabled or incapacitated loved ones. Anna M. Price is a WV guardianship attorney with the Huntington law firm of Jenkins Fenstermaker, PLLC. If you would like to discuss the legal options and considerations related to guardianship of an adult with Anna, you may contact her by calling 866-617-4736 or completing the firm’s online contact form.