There must be a court order to create a guardianship for an adult. The court will first have to make a determination of incapacitation.
Prior to the court order, the person is known as an alleged incapacitated person. Once the court declares the person incapacitated, he or she becomes a ward of the court, meaning the person is under the protection of the court.
For a court to rule a person incapacitated, there must be proof the person is not able to take care of him or herself. The person may have a mental illness, physical issues, substance dependency or a developmental issue. The court can declare someone fully incapacitated, which means the person is unable to provide any care for him or herself, or it can declare incapacitation for only one area of the person’s life.
Impacts of the decision
The court takes the declaration of incapacitation seriously because issuing a guardianship will take away some of that person’s basic rights. He or she will not be able to manage his or her own affairs and will become dependent on the person appointed as the guardian. For this reason, the court can issue a limited guardianship where the guardian has control over specific areas of the person’s life, such as handling the financial affairs only or managing medical care.
A guardianship is a serious situation. It is a determination that an individual is not able to manage his or her own life and needs someone to step in to help. Requiring a declaration of incapacitation helps ensure guardianships only happen when really needed.