Guardianship is a legal process to appoint someone to handling the affairs of a person who is legally incapacitated in caring for himself/herself. It is not something that two people can privately agree to do for each other. Only a judge can appoint a guardian. Typically it is a family member (e.g. parent, sibling, son or daughter) who applies to the court to be a guardian of an incapacitated person (called the “ward”). The applicant has to prove to the court that the ward is legally incapacitated and requires helps in managing his/her affairs.
There are two types of guardianship: guardianship of the person and guardianship of the estate. Guardianship of the person covers medical decisions, physical custody and day to day activities of the ward, whereas guardianship of the estate covers anything related to contracts or finance. Depending on the needs of the ward, application for one or both types of guardianship may be needed.
In evaluating the necessity of a guardianship, the judge will rely heavily on the medical evidence supplied by a physician or psychologist in the form of a “certification of medical examination” (CME). The CME must be dated within 120 days of the application of guardianship to the court, unless the ward’s incapacity is based on intellectual disability, in which case the CME may be dated within 24 months of the application.
Once the judge approves the application, the applicant will have to take an oath and post a bond before being appointed as a guardian. The exact amount of the bond will be determined by the judge, but typically reflects the amount of assets that the guardian has to manage on behalf of the ward. The larger the assets are, the higher the bond will be. After the applicant is appointed as a guardian, the court will issue a letter of guardianship. Every year, the guardian will have to file a report (if it is a guardianship of the person) or an accounting (if it is a guardianship of the estate) to the court in order to renew the appointment.