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What Makes a Guardian Capable?

Gene Kirzhner June 12, 2023

Guardianship is a legal arrangement that allows one party to make personal and legal decisions on behalf of an individual who is not fully capable of doing so themself. In Rhode Island, guardianship is governed by state law.

According to the Uniform Law Commission, a guardian is a person appointed by a court to manage the care and well-being of another person, which differs from a conservatorappointed by the court to manage the patrimony of another person.

What is a Guardian?

A guardian is someone legally allowed to make decisions about health care and personal matters for someone who is not capable of doing so. It is typically a family member or an attorney appointed by the court.

Since guardianship gives you almost full control over another person’s basic choices, before a Petition for Guardianship is granted, the petitioner must demonstrate that there is no less restrictive alternative to guardianship. For this reason, a physician must complete documentation that the individual is incapable of making decisions for themselves, and Courts will try to look at whether less restrictive alternatives compared to guardianship can be taken.

Who Sets Up the Guardianship?

Courts are also responsible for reviewing the petitioner’s application for guardianship to ensure that the incapacitated adult’s rights are protected and that they enjoy as much freedom as possible. In the case of elder adults, the creation of guardianship does not mean that the elderly person has relinquished all decision-making capacity, but that the determination of the amount of protection a guardian will provide will depend on the exact needs of the elderly person.

On the other hand, guardianship of minors or children is usually sought when a minor’s parents are deceased, and the local probate court may appoint guardianship of that child after reviewing the petition to ensure that the prospective guardian is a safe and loving caregiver for the child. In addition, if both parents are declared incompetent because of abuse or neglect, the court can make a ruling whereby the parties agree to guardianship so that the adoptive parents have the legal capacity to make important decisions for the child.

​The process of granting guardianship must always be done before a court, as it is a judicial proceeding that begins when an attorney, representing a family member or other person, files a petition with the court that shows that the respondent is incapacitated.

The guardian, whom only the court can appoint, will have only such powers as the court deems necessary and proper. Usually, the guardian will have the power to decide where the protected person lives, to decide for the protected person’s care and safety, and to make health care decisions. If there is no conservator, the guardian may be responsible for taking care of the protected person’s assets.

We Can Help with Guardianships

The Law Offices of Howe and Garside, LTD have years of experience in guardianship procedures and will do everything we can to help you make the right decisions for your best legal outcome.

Our attorneys will assess your legal concerns and handle your case with the attention it deserves. Contact us today or use our online contact form to schedule a free consultation.

The Law Offices of Howe and Garside, LTD provides highly-experienced legal solutions in Newport, Lincoln, Middletown, Portsmouth, Warwick, Greenwich, Kingstown, Tiverton, and the surrounding Rhode Island communities.

The Law Offices of Howe and Garside, LTD

55 Memorial Blvd. Suite 5

Newport, RI 02840