For thousands of years Guardians and Trustees have provided essential services to protect their clients and their clients wealth.
Dating back to Roman times, incompetence proceedings by a jury of peers were convened to examine an allegedly incompetent person and to make a decision about their capacity and ability to care for themselves.
Later English feudal practice required that Lords seize and manage an insane person's assets for the person's benefit.
In the 14th century the De Praerogativa Regis Statute was enacted where in the King became responsible for the protection and care of a mentally disabled person.
More recently the American judicial system defined the state has having authority to act on behalf of an incapacitated person.
Each state has developed its own set of laws regarding guardianship.
However, it is important to note that all states recognize that:
These are same basic protections afforded to all citizens including their right to:
1.
Guardianship of the person is where the court gives one person (the guardian) the power and duty to make personal decisions for another (the person without capacity).
These decisions may include medical treatment, care, residential placement and lifestyle considerations.
2.
The second common form of Guardianship is called Guardian of the Estate.
The primary reason for an appointment of a Guardian of the Estate is to protect the income and assets of the incapacitated person from waste or undue influence.
The Guardian of the Estate has a fiduciary responsibility to make sure that the incapacitated person's bills are paid, monies are prudently invested and that property is managed or disposed of in a prudent manner.
The guardian of the Estate is referred to as a conservator in some states.
If you feel that you could become incapacitated as a result of illness or accident or be victimized by someone it is worth exploring the idea of having an independent guardian or trustee who will care for you and your estate.
In some states guardians and trustees are required to be licensed by the state, you can request a list of licensed guardians from your state.
For more information about how a guardian or trustee could assist you, please click here.
Dating back to Roman times, incompetence proceedings by a jury of peers were convened to examine an allegedly incompetent person and to make a decision about their capacity and ability to care for themselves.
Later English feudal practice required that Lords seize and manage an insane person's assets for the person's benefit.
In the 14th century the De Praerogativa Regis Statute was enacted where in the King became responsible for the protection and care of a mentally disabled person.
More recently the American judicial system defined the state has having authority to act on behalf of an incapacitated person.
Each state has developed its own set of laws regarding guardianship.
However, it is important to note that all states recognize that:
- Incapacity is a legal definition not a medical definition
- All Guardianships are based on the decision -making capacity of the individual without regard to the diagnostic reason.
- Guardianships are established through a court order and are subject to court supervision
- Every guardianship should be based on an individual's needs and strengths and should be as limited as possible.
These are same basic protections afforded to all citizens including their right to:
- A notice of the proceeding
- Be represented by legal counsel
- A hearing
- Be present at the hearing and all other court proceedings
- Compel witnesses and to confront and cross -examine all witnesses
- Present evidence
- A clear and convincing standard/burden of Proof
- Appeal the determination of the court
1.
Guardianship of the person is where the court gives one person (the guardian) the power and duty to make personal decisions for another (the person without capacity).
These decisions may include medical treatment, care, residential placement and lifestyle considerations.
2.
The second common form of Guardianship is called Guardian of the Estate.
The primary reason for an appointment of a Guardian of the Estate is to protect the income and assets of the incapacitated person from waste or undue influence.
The Guardian of the Estate has a fiduciary responsibility to make sure that the incapacitated person's bills are paid, monies are prudently invested and that property is managed or disposed of in a prudent manner.
The guardian of the Estate is referred to as a conservator in some states.
If you feel that you could become incapacitated as a result of illness or accident or be victimized by someone it is worth exploring the idea of having an independent guardian or trustee who will care for you and your estate.
In some states guardians and trustees are required to be licensed by the state, you can request a list of licensed guardians from your state.
For more information about how a guardian or trustee could assist you, please click here.
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