Guardianship is an arrangement wherein a competent and trustworthy adult takes care of another adult’s basic needs. Guardianship often follows major medical events, such as strokes or pulmonary embolisms. Occasionally, the party in need of support might actually voluntarily participate in the guardianship process. The state can award both voluntary and involuntary guardianships.
What are the main differences between these two options?
The capacity of the ward
The party subject to the guardianship is the ward. A voluntary guardianship is only possible in scenarios where the ward retains their testamentary capacity. They consent to have another person oversee their affairs. Involuntary guardianships require a lack of testamentary capacity on the part of the ward, and the plaintiff seeking the guardianship must prove the alleged lack of capacity.
The duration of the guardianship
Voluntary guardianships often only last for a set amount of time. Typically, their maximum duration is six months, although the parties involved can renew the guardianship. The courts can also convert the guardianship to an involuntary arrangement if the guardian petitions the courts and has evidence that such changes are necessary.
Involuntary guardianships can last for as long as support is necessary. They could persist indefinitely or until the ward can show that they have regained their capacity and are capable of managing their own affairs.
Both voluntary and involuntary guardianships can help ensure that a trustworthy person manages another party’s needs while they are vulnerable. A voluntary guardianship established after a diagnosis can lay the foundation for continued support when a person’s cognitive capacity later declines. Involuntary guardianships help those who cannot make legal decisions on their own behalf anymore.
Discussing family circumstances and concerns about an individual with a skilled legal team can help concerned parties decide whether a voluntary or involuntary guardianship is the best option given the unique situation at hand.
