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Factors to consider when establishing a guardianship

You may wish to set up a guardianship for your children in the event that you and your spouse are unable to care for them. It is preferable that you name a guardian in your will because if you do not, and you suffer an untimely death, one will be appointed by the court. A guardian is someone who will make decisions for someone who is unable to make decisions for him- or herself. The person for whom the guardian makes decisions is usually referred to as a ward.

Among the kinds of responsibilities a guardian might have include granting consent for medical care or treatment, buying day-to-day necessities (such as food, clothes, household goods, cars and other personal items), providing for the ward’s education and managing the ward’s finances. One instance in which a guardianship is established is when the ward is incapacitated, and is unable to make decisions for him- or herself due to a physical or mental disability, illness or addiction to drugs or alcohol.

However, if the incapacitated person already has a durable power of attorney, or health care power of attorney, which is a legal document that permits an individual to appoint someone to make health care decisions on their behalf, then there may be no need for a guardianship. But if there is no power of attorney, then a guardian must be selected.

The possible choices of a guardian are someone appointed by the ward via a legal document, for instance, to take care of his or her affairs; a spouse, parent or other family member; an employee of the state or a person knowledgeable about the ward and the ward’s incapacity.

The guardian must be someone who is willing and capable of carrying out the necessary responsibilities, and to act in the best interests of the ward. When choosing a guardian, the court takes into account the person’s character, physical ability and history. Each state has its own set of guardianship statutes that specify the duties and powers of the guardian.

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