Joseph Romano Law

The guardianship procedures in most states, and the most commonly asked questions posed by family members and health care providers, are discussed below:

What is guardianship?
Guardianship is a legal relationship between one individual (the guardian) and an incapacitated individual (the ward) which gives the guardian the right and the duty to act on behalf of the incapacitated party in making decisions that affect the person's life. Unless the court in some way limits the guardianship, the guardian will manage all of the incapacitated party's personal, legal and financial affairs.

When do I need a guardian?
A guardian is necessary when an individual suffers a catastrophic injury, illness, or is otherwise so disabled that the individual is unable to make responsible decisions concerning his medical, legal and financial needs, and manage his daily affairs.

Why is a guardian needed?
A guardian has the legal responsibility of safeguarding the incapacitated person's welfare.

If the person handling the incapacitated party's affairs is not a court-appointed guardian, and this person dies, becomes himself disabled because of illness or injury, or chooses not to continue to assist the incapacitated party, it can be difficult to accomplish the orderly and timely transfer of responsibilities to another person to insure that someone will act in the incapacitated party's behalf.

However, if a guardian has been appointed by the court and that guardian ceases to act for any of the above reasons, the court will promptly replace that person with another court-appointed guardian, to assure that all the rights and benefits due the incapacitated person are continued without interruption.

Some of the responsibilities and functions of a guardian are:

Consult with the treating doctors concerning proper medical treatment and placement if necessary
Legally give authorization for inspection of medical records by signing a release of medical information for:
1. Medical Assistance
2. Worker's compensation insurance companies
3. Social Security Disability
4. Medicare/Medicaid
5. Blue Cross/Blue Shield
6. HMO's
7. Others
Legally refuse or limit access to the incapacitated party's medical records in order to protect the individual's right to continuing health care and insurance benefits
Open bank accounts and write checks
Keep records of all financial transactions
Safeguard the incapacitated party's assets
Legally speak for the incapacitated party as an advocate for that individual's best interest
Apply for governmental benefits, Social Security Disability, Supplemental Security Income and state medical benefits
Apply for no-fault benefits
Safeguard continuity of health care
Set up proper trust and estate planning
In an injury case, retain an attorney to investigate the cause of the accident, seeking catastrophic heaalth care benefits
Institute legal action to protect the incapacitated party's rights against:
1. The insurance company, for payment of proper medical benefits
2. The party who caused the accident, seeking catastrophic health care benefits
3. The school district, for failing to provide required special education benefits for minor children
Meet notification requirements under applicable state laws to protect the incapacitated party's right to seek catastrophic health care benefits
Use evidence of a declaration of incapacitation by the court in obtaining governmental benefits and catastrophic health care benefits from insurance companies

Is a guardianship revocable?
Yes, a guardian ship is revocable. The incapacitated individual, or anyone acting on his or her behalf, may ask the probate court at any time to remove the guardian or revoke the guardianship. Medical documentation of the treating doctor is necessary to revoke guardianship.

For an extensive discussion of guardianship, contact Mr. Romano
at his office (800-331-4134) for a complimentary copy of his book,
The Legal Rights of the Catastrophically Ill and Injured: A Family Guide.