If you do not have a Health Care Power of Attorney or Financial Power of Attorney in place and you become incapacitated, your loved ones will have to go to court to have you declared legally incompetent and have a guardian appointed. Generally speaking, a guardianship may be limited or unlimited in scope and may cover the your personal care, financial assets, or both. The application includes a portion to be completed by the your physician. Generally, the evaluation describes your specific cognitive and functional limitations, mental and physical condition, prognosis for improvement, and a recommendation as to your appropriate treatment. A person is found legally incapacitated if the court determines that a person is unable to receive and evaluate information or to make or communicate decisions to the point that the person’s ability to care for his or her health, safety, or self is compromised. A diagnosis of a particular illness or disease is not conclusive evidence for the finding of incapacity. Instead, courts will look to a pattern of behaviors and judgments, paired with medical information, to assess the degree of incapacity.
During the course of a guardianship of estate, the guardian is required to make periodic accountings to the court for funds received and expenses paid on behalf of the ward from the ward’s funds. The guardian must continually show the court that all decisions on the ward’s behalf are in the ward’s best interests, not merely convenient for the guardian, and that all funds are spent on the ward. The guardian must use the ward’s funds to maintain the ward at a standard of living consistent with the size of the ward’s estate and that adequately meets the ward’s medical and other needs.
Guardians of person or estate who fail to meet their legal obligations to their wards may be removed as guardian by the court. Family members or public agency workers may inform the court that the ward is receiving improper or insufficient care or that funds are being improperly managed either by the guardian as caregiver him- or herself or by a caregiver retained by the guardian. The court, or family members, may file a motion to remove the guardian and require the guardian to testify in court as to the facts behind such allegations. If the allegations of maltreatment or misappropriation of funds are justified, the guardian may also face charges of neglect, abuse, or theft under local criminal laws.