Some individuals are not legally able to handle their own affairs due to minority (under age 18) or incapacity. They may have been born incapacitated, or they may have become incapacitated because of an illness, accident, or decline in physical or mental capacities later in life. What can be done for such individuals? It may be necessary to establish a guardianship to protect such persons. A guardianship is a proceeding where an interested person or corporate entity petitions the Court to be appointed as guardian to handle the affairs of an incapacitated individual (known as the “protected person”). A person may be appointed as guardian over health care and living arrangements and/or financial affairs.
Generally, a guardian is not liable for the actions of the protected person. For example, if the protected person steals a car and wrecks it, the guardian cannot be charged with theft or be required to use his or her personal funds to pay for the damages. If the guardian acts in good faith in carrying out his or her duties, the guardian will not be held liable for his or her actions. However, if the guardian breaches his or her fiduciary duties, then he or she may be found liable. If the guardian is not doing his or her job properly or becomes unwilling or unable to serve, then the guardian maybe removed by the Court. A successor guardian will be appointed after a Court hearing. If the protected person is a minor, then the guardianship is terminated when the protected person turns 18. In the cases of adult guardianships, the guardianship may be terminated by the Court if the Court finds that the protected person is no longer incapacitated. The guardianship can also be terminated when the protected person dies or if he or she moves to another state.