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What Is a Guardianship?
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Here in Massachusetts, an adult who needs a guardian is
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Hi. My name is James Baron. I am a special education law and special needs estate planning attorney located in Waltham, Massachusetts. Today for About.com I am going to discuss guardianships.What is a guardian? A guardian is someone appointed by the court who has the legal authority and duty to care for another person, where the other person is either a minor, incapacitated or disabled. Laws that govern guardianships vary by state, so it is important to check with a lawyer in your state when dealing with issues regarding guardianship.Here in Massachusetts, an adult who needs a guardianship is referred to as an incapacitated person. Other states may refer to this person as a Ward. A guardian is responsible for the care, health, and safety of the incapacitated person.Guardianships can either be general or limited. Courts try to maintain an individual's rights and liberties as much as possible, and therefore the courts prefer limited guardianships over general guardianships. In order to obtain guardianship, an application or petition usually needs to be filed with the court. The petition is usually accompanied by medical reports or other written information that will help a judge decide how extensive of a guardianship is necessary. There will also usually be a hearing in court in front of the judge to determine guardianship.A guardian takes care of and makes decisions for an incapacitated individual in the areas approved by the court very similar to the way a parent takes care of and makes decisions for their minor child.Something very similar to a guardianship is a conservatorship. While a guardian has control over an incapacitated person, a conservator has control over the finances of the incapacitated person. One may be a guardian, but not a conservator; a conservator, but not a guardian, or both a guardian and a conservator. The conservatorship is appointed by the court just as a guardianship is also appointed by the court.Courts usually require annual reporting by the guardian to the court to update the court regarding the incapacitated person's situation.Regarding minors, courts will appoint a guardian if the child's birth or adoptive parents have died or are unfit or unavailable to care for the child. Parents will often put guardianship clauses in their wills to indicate who they would like the court to appoint as guardian if the parents die while their children are still minors.There are also alternatives to guardianships that might be appropriate in certain circumstances. For example, you can create a Health Care Proxy which will grant health care decision-making power to another individual in the event that you are unable to make such decisions yourself. Similarly, you could create a Durable Power Of Attorney which will grant to another individual the power to make money, property, and business decisions on your behalf if you are unable to make such decisions yourself. These documents are often part of an estate plan.Thanks very much for watching. To learn more, please visit about.com.
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