Updated January 2021 Fact Sheet PDF
A guardianship is an order given by the court to a person (called the guardian) giving that person legal power and the duty to care for another person (called the ward). The guardianship may give the guardian control over the ward's property, physical person, or both. Once a year, a guardian is required to make a report to court about the ward called an annual report.
To get a guardianship, the ward must be incapacitated. This means the ward has a disability, such as a severe mental illness or intellectual disability, or has another condition that makes them unable to manage their health, safety, or financial matters. You can also get a guardianship if the ward is a minor child who is not emancipated. This fact sheet is specific to guardianship over someone who is 18 years or older.
A court will decide whether the ward can take care of themselves or finances and property. Making bad decisions and/or mismanagement of one's money is typically not enough to be granted a guardianship.
Family members often request a guardianship, but a guardianship can be requested by any interested adult.
A guardian can be any person who is all of the following:
- a resident of the state
- aged 18 years or older
- of sound mind
- not a convicted or unpardoned felon, unless certified court records are provided for the judge's review
The Department of Human Services, a corporation, or a bank can also be appointed as a guardian.
A guardian is not free to do what they want with the ward or the ward's property. A guardian is responsible for taking care of the ward and the ward's property. A guardian must file a petition with the court and get written permission before making some decisions, like withholding life-saving medical treatments, terminating parental rights, and prohibiting the ward from obtaining a driver's license.
The ward or the ward’s estate may sue a guardian who does not take care of the ward or the ward’s property properly.
Getting a Guardianship: Three Steps
The petition is filed in the circuit court of the county where the ward lives. The ward must be served with the petition, a notice of the hearing, and be informed of his or her rights.
A professional evaluation of the ward is made within 6 months of the hearings. A physician, psychologist, or social worker may do the evaluation. The professional evaluates the ward's condition and abilities and tells the court their findings in a notarized affidavit or by testifying at the hearing.
At the hearing, the ward has a right to have an attorney to present evidence, cross-examine witnesses, and have the professional who prepared the evaluation testify about the ward's condition.
If the judge decides that the ward is incapacitated, then the judge will decide how incapacitated the ward is. The judge will also decide if something else can be done to help the ward besides a guardianship. If nothing else can be done, the judge will order a guardianship of the ward.
The judge will issue an order to the guardian. This order will explain exactly what the guardian can and cannot do with the ward and the ward's property. The court clerk will then give the "letters of guardianship" to the guardian. These letters are what the guardian gives to other people so that the guardian can take care of the ward and the ward's business.
Ending a Guardianship
A guardianship can end for many reasons, including:
- the ward dying or moving out of state
- the judge finding the ward is competent
- the judge finding the guardianship is no longer in the ward’s best interest
Guardianships are expensive and require a lot of work. Guardianships also mean that the ward loses the ability to care for themselves. There are other ways to help a person take care of themselves or their needs without getting a guardianship. This includes:
Power of Attorney
A power of attorney is a document that a person (called a principal) can give to someone they trust (called an agent). The power of attorney allows the agent to make decisions about the principal's medical care or treatment or to handle business on behalf of the principal.
Normally, a power of attorney ends if the principal becomes incompetent. However, if the power of attorney is "durable," then it will be good even if the principal becomes incompetent.
Durable powers of attorney are generally made when a person is having medical treatment or losing mental capacity. A person must be competent when signing a power of attorney for the document to be valid.
The advantages of a power of attorney over a guardianship are:
- the principal has control over who is given the power of attorney
- the principal may end the power of attorney at any time
- you do not have to go to court to get a power of attorney
- no court supervision is required
- it is inexpensive
A conservatorship is created when a person consents to allowing someone else to handle their estate without being declared incapacitated. This is like a voluntary guardianship. The procedure is the same as for a regular guardianship. The difference is that there is no need for an evaluation, so the proceeding is usually less expensive.
A person has the right to make a statement, called a living will, which states their wishes about withholding or withdrawing life-sustaining treatment. Forms are available that you can fill out and give to your doctor.
The living will only becomes effective if the attending doctor determines:
- you are terminally ill
- you are no longer able to make decisions
- you are permanently unconscious
The living will only applies to medical decisions. It is not a real "will" and will not decide what should be done with your property after your death.