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Determining Guardianship

Is the formal appointment of a guardian or conservator by the Probate Court necessary to care for or conduct the affairs of an adult who has become incapacitated or disabled? The answer to this very important question, asked often by not only the family and friends of the adult but also by the adult, depends on the circumstances of each individual case. Posing the question is both appropriate and prudent, because adult guardianship proceedings are fairly complicated and time-consuming, as well as relatively expensive, primarily as a result of the due process protections afforded the proposed ward in such proceedings. This is not to say that guardianship proceedings are overly complex; the court receives clear and convincing evidence of incapacity before removing 

the rights of an adult citizen and the order issued in every case is fashioned to the particular circumstances. 

However, there are often alternatives to guardianship or conservatorship that may accomplish the needed ends in any particular case. These alternatives should be considered where applicable and should be utilized in every case where doing so will accomplish the underlying purpose and provide any needed protection for the adult. 

Defining Incapacity

It is important to distinguish physical disability or incapacity from mental disability or incapacity. One can be physically incapacitated yet retain full mental competence. On the other hand, one might be mentally incapacitated but be physically quite fit and well. 

The availability and/or effectiveness of any of these alternatives will likely be dependent upon the type and extent of incapacity. To be legally effective and sufficient, the documents discussed herein requiring the signature of the adult must be signed at a time when the adult is capable and competent to understand the nature and purpose of the documents. Utilization of or preparation of the alternatives reviewed in this pamphlet may require the services of an attorney experienced in this field. Sometimes the statutorily approved form for basic documents will be sufficient. Copies of basic forms are available in the Probate Court.

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