Schmidt & Sikes, P.C.

Support and protection for those who need it most.
413-203-5313

September 16th, 2014 by Marilyn J. Schmidt, Esq.

How and why to serve as a Guardian

If your friend or loved one is incapacitated to such an extent that she/he cannot make rational decisions about medical treatment, residence, or supportive services, you might be asked to serve as his/her court-appointed guardian. A guardian is basically a surrogate decision-maker about matters of the person for someone who is incapacitated (“the Respondent”); it is not a substitute decision-maker about the Respondent’s finances.

Guardianship is not financial responsibility.

A guardian does not assume financial responsibility for the Respondent. Any expenses related to the guardianship proceeding in court, or related to the ongoing lifestyle of the Respondent, should be paid out of the Respondent’s resources, whether by Respondent or his/her duly authorized surrogate. This might be a court-appointed conservator, social security administration-appointed “representative payee,” or an attorney-in-fact nominated in a durable power of attorney document that the Respondent signed at an earlier date.

Decisions in the respondent’s best interest.

The guardian’s duty is to make decisions that are in the best interest of the Respondent. To the extent possible, the Respondent should be given input; but his/her preference is only one factor for the guardian to consider when making a decision.

To be appointed as guardian, four things may be required of you:

1. Sign a bond

You need to sign a “bond” form that essentially confirms your willingness to accept the job. There is one bond for a temporary guardian who is being appointed to handle an immediate need of the Respondent that cannot wait until the end of the legal process. There is another bond for the permanent guardian who is being appointed to handle things on a long-term basis.

 2. Provide a CORI

You also need to provide the court’s probation office with a CORI (Criminal Record Information) form. This forms contains your name, your address, your date of birth, your social security number and the names of your parents. It enables the probation officer to look at any criminal record that you may have. If you happen to have a criminal record, then the judge will have to consider whether or not that record renders you unsuitable to serve as guardian.

3. Make a court appearance

Many judges will want to meet you to determine your suitability to serve as the guardian for the Respondent. In those cases, the attorney will ask you to attend court. In the event that it is not possible for you to attend court, you should at least provide a phone number where you can be reached during the hearing, so that the judge has the option of calling you and asking you a few questions. Typical questions are “How often do you visit with X?” and “Why are you the right person to be X’s guardian?”

 4. File a Guardian’s Plan/Report

The guardian is required to file an annual document with the court. It is a simple three-page form that needs to be completed, signed, filed with the court, and given to the Respondent. It keeps the court informed about how the Respondent is doing, whether or not guardianship is still appropriate, etc. If the judge has any questions, she/he may schedule a time for you to come to court and answer those questions, but this is a rare occurrence.

A guardian cannot do the following:

You cannot consent to long-term admission to a skilled nursing facility unless the court has specifically authorized that in the Decree of Guardianship. However, you can consent to an admission for less than 60 days, for the purposes of rehabilitation, if you and the physician sign and file with the court a form entitled “Notice of Intent to Admit.” If the Respondent has counsel, you need to give them a copy; if the Respondent doesn’t have counsel, the court will appoint one. This is a pretty straightforward procedure for the court to make sure that the guardian is not unnecessarily institutionalizing the Respondent.

You cannot consent to treatment with anti-psychotic medication unless the court has specifically authorized a treatment plan for it. Such orders are good for one year, get monitored by a court-appointed professional, and are renewed annually.

 Why serve as a guardian?

Generally, serving as guardian for family members or friends is not a difficult or complicated task. Most importantly, you will be ensuring your loved ones’ basic safety and health by consenting to adequate care, treatment and supervision at a time in their lives when they are no longer able to do that themselves.