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from Equip for Equality’s Legal Advocacy Program
EFE FACT SHEET –
Guardianship
GUARDIANSHIP – FREQUENTLY ASKED QUESTIONS
What is guardianship?
People are under guardianship when they have been appointed a guardian
to help manage their affairs. Only a judge can appoint a guardian. Just
because you have a disability or medical condition does not mean you
need a guardian. A judge can appoint a guardian only if you lack the
understanding or capacity to make decisions about personal or financial
matters.
How does a judge decide whether to appoint a guardian?
The person or organization seeking appointment of a guardian must file a
petition for guardianship with the court, along with supporting information
from a doctor. You may oppose the guardianship and are entitled to have a
lawyer appointed by the judge. The judge will then hold a hearing to
determine whether you are able to make decisions about personal or
financial matters. Both sides can call witnesses to testify.
When should guardianship be pursued?
Guardianship is an extreme intrusion in the life of a person with a disability
because it takes away control over basic decisions for an indefinite period.
Because guardianship deprives you of liberty, it should be used only when
absolutely necessary. Before family members or others go to court to be appointed
guardian, they should consider whether a guardianship is truly necessary or
whether there are alternatives that can meet your needs without unnecessarily
depriving you of your liberty.
Are there other, less-intrusive ways of helping people with disabilities
manage their affairs?
Yes. Several legal and non-legal tools can help people with disabilities
manage their affairs in ways that are less intrusive, less expensive and
often more effective than guardianship. These include:
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Power of attorney to transact financial affairs
Power of attorney for health care
Health care surrogacy
Mental health advance directives
Representative payees
Bill-paying assistance programs
In-home supports
Advocacy services
What types of guardianship can judges impose?
There are two types of guardianship:
 Guardianship over the estate addresses financial decision-making.
 Guardianship over the person addresses personal decision-making.
Each can be plenary (full) or limited (partial). The subject of guardianship is
referred to as the “ward.”
Should guardianships be broad or narrow?
Because a guardianship is a limitation on your basic right to make
decisions, it should be narrowly tailored so it doesn’t unnecessarily intrude
on decision-making ability. Thus, guardianship should be confined to those
areas in which you assistance. A person who needs help only with financial
decisions does not need a guardian over the person. A person who needs
help only with personal decisions does not need a guardian over the
estate. In addition, people who have some ability to make decisions in the
area in which they need a guardian might require only a limited rather than
full guardian. The court order must be specific about the authority of a
limited guardian.
What are some examples of narrowly tailored guardianships?
 A guardianship over the estate, but not over the person, allows you to
retain all nonfinancial decision-making.
 A guardianship over the estate that is limited to entering into
contracts allows you to make smaller, everyday financial decisions.
 A guardianship over the person, but not the estate, allows you to
retain all financial decision-making.
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 A guardianship over the person can be limited to health and
employment decisions, allowing you to make choices about where
you want to live.
What must a guardian of the person do when making decisions for the
ward?
A guardian of the person must make decisions that conform to what the
ward would have done if competent, guided by the stated preferences of
the ward (stated either before or during the guardianship) and the ward’s
moral, religious, philosophical and personal beliefs. If the wishes of the
ward are unknown even after reasonable efforts are made to understand
them, the guardian must make decisions in the ward’s best interests.
What must a guardian of the estate do when making decisions for the
ward?
No, not without court permission.
We handled a case that established important rights before involuntary
sterilization cases proceed. We then worked to have those protections
codified into a new law.
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