Guardianship & Less Restrictive Alternatives

Your lawyer is there to represent you and what you want in the guardianship proceeding. The lawyer is not there to represent your best interests (that would be the job of a guardian ad litem). If you do not want a guardian, your lawyer should tell the judge this, and present any evidence there is showing why you don’t need one.

To have the guardianship terminated, you need to send a letter requesting termination of the guardianship to the probate court that appointed the guardian.  You can also file a form called “Motion to Terminate Guardianship/Conservatorship” and forward this form to the correct probate court. You can get this form from the Probate Court website.

Once the court has received your letter or Motion, they will schedule a hearing.  When the hearing has been scheduled, if you don’t already have a lawyer, contact the court and let them know that you’d like them to appoint one for you.  You will want to have someone else at the hearing who can testify about your ability to manage your own affairs.

The judge will decide whether to remove the guardian based on whether removal is in your best interest. The judge can also further limit the terms of the guardianship so that you retain more of your rights. If your guardian is not managing your affairs properly, or if you want someone else to be appointed your guardian, you can ask for this as well.

The law says the court should only appoint a guardian if there are no available alternative resources to make sure you stay safe, well, and get the services you need, and that your property and money is handled prudently. Some ways to get this help without losing your legal rights include:

• Supported Decision-Making
• Revocable Power of Attorney
• Services such as visiting nurses, homemakers, home health aides, adult day care
• A mentor, or someone to give you advice and support, and help you make good decisions
• Representative payee for Social Security

That depends on the judge’s order. You can get the judge’s order with the details of the guardianship over you, and read them or have someone read and explain them to you. Depending on the judge’s order, the guardianship may limit your right to:

• Travel or decide where you live
• Arrange for your medical care and other services
• Manage your money and property
• Marry or divorce
• Have a driver’s license
• Make or change a will
• Testify in court
• Make contracts
• Buy, sell or give away property
• Give or refuse to give permission for other people to look at or get copies of your records
• File a lawsuit.

The guardianship should only limit those rights you are unable to exercise, and only if there are no available alternative resources to help you exercise those rights.

A Guardian CANNOT:

• Admit you to an institution without the judge’s permission or a hearing and the right to a lawyer
• Agree for you to have psychosurgery, sterilization, electroshock, or experimental treatments without the court’s permission.

A Guardian must:

• Safeguard your civil rights as much as possible.
• Only restrict your personal freedom to the extent necessary.
• If the guardian manages your money, he/she must protect and preserve it, and use it for your needs.