Types of guardianship include:

• Guardian of the person
• The estate (property and finances)
• Temporary guardianship 
• Standby guardian (a backup to a primary guardian)

Guardianship laws vary by state, and attorneys familiar with guardianship processes for the specific area should be consulted. Several general concepts hold true, however:

• Guardianship is predicated on an individual being considered incompetent relative to other adults within that community.
  • Lack of evaluative capacity is defined as the inability to take in, evaluate, and communicate information for decisions.  It is not a function of being old, having an unrelated disability, or making “bad” but otherwise informed decisions.   
• Individuals must be at least 17 years and 9 months old at the time of guardianship (i.e. transitioning from “minor” status to adult)
• Individuals must have a court-determined impairment including:
  • a developmental disability or serious or persistent mental illness
  • a degenerative brain disorder, or “other like incapacities”. 
  • note: a physical disability, unless it affects communication, is not a criterion. 
• Individuals must lack evaluative capacity, putting them at risk of harm to either their person or estate and less restrictive alternatives (e.g., limited capacity to assign a power of attorney) are not available. 

Individual’s rights are protected through state and federal constitutions. These include the right to:

• Communicate with court or government officials
• Petition the court for a review of guardianship, protective services, and placement
• Representation (attorney) and the right to communicate privately with advocacy agencies
• Protest placement in a facility
• Withhold consent and to refuse certain treatments (e.g., mental illness treatment). 

However, certain rights (e.g., right to vote, execute a will, serve on a jury, consent to marriage,  apply for licenses, consent to organ donation) cannot be delegated to a guardian.

The Guardianship Process is based on legal due process.

• Step 1: An individual is deemed to lack decisional capacity, and to lack the limited capacity to assign a less restrictive representative (i.e. a Power of Attorney).  This is decided by two physicians, or a physician and a psychologist.
• Step 2: A petition is filed with the state if the person meets the standards for guardianship.
• Step 3: Notice must be provided to the individual, proposed guardian, and any “interested persons” (family or friends who have a relationship with the individual, and who wish to have a say in the proceedings).
• Step 4: A guardian ad litem is assigned.  This is not a temporary guardian, but rather someone who makes certain that the individual’s rights are not violated and represents the best interests of the proposed ward during the guardianship process.
• Step 5: A court hearing is held in the jurisdiction where the individual resides.