Alaska Court System Self-Help

Guardianship is a legal arrangement where the court appoints a person or institution as a guardian to make decisions for an incapacitated person or a minor child -- decisions about housing, medical care, legal issues, and services. The individual being cared for is called the “ward.”

In 2004, the Legislature changed the law so that a full guardian of an adult automatically has the powers of a conservator. Before 2004, it was necessary to get two appointments, one for a guardian and one for a conservator. While a person appointed as guardian may also be appointed as conservator, a separate conservator can be appointed.

A guardian is a person the court appoints to manage the affairs of another person, called the ward. A guardian has authority to make personal decisions for the ward, such as where the ward will live and under what conditions. A guardian may also manage the finances of the ward if the court has not appointed a separate conservator (someone to manage the ward’s money and property).

A full guardian has more powers than a conservator because the conservator only manages the financial affairs for another person. The guardian can make personal decisions for the person regarding housing, care, health, legal rights plus finances decisions.

If you are concerned that a family member or friend cannot take care of him/herself and manage their daily living responsibilities (cooking, eating, bathing, getting healthcare, managing money and property), you may consider filing a petition for guardianship.

The court may appoint a guardian if the person is incapacitated and the services of a guardian are necessary. A person is incapacitated if his or her ability to receive and evaluate information or communicate decisions is so impaired that the person cannot take care of his or her own physical health or safety (meaning provide the healthcare, food, shelter, clothing, etc. the person needs to avoid serious physical injury or illness).

If you think the person cannot manage their money but is otherwise able to take care of him/herself, you may consider filing a petition for conservatorship.

A guardian has nearly the same powers and duties to the ward as a parent does to a minor child. However, the guardian does not have to use his or her own money to pay for the ward’s care, and the guardian is not personally liable for harm done by the ward. Although the guardian has the authority to make decisions regarding the ward’s care, if possible, you should discuss decisions with the ward, members of the ward’s family and care providers. This will help avoid misunderstandings. The guardian has many powers and duties that include, but are not limited to, the following:

• Housing
• Care, Comfort and Maintenance
• Health and Safety
• Ward’s Rights
• Finances

Learn more at Powers and Duties of a Full Guardian of an Adult PG-510

The guardian must decide where the ward will live, allowing the ward to participate in the decision-making as much as possible. The guardian must consider the ward’s wishes about where to live. The guardian must choose the least restrictive setting that protects the ward. To allow the ward to remain in the ward’s home as long as possible, you may need to investigate available services to help the ward – services such as providing meals, housekeeping, running errands, adult day care, periodic nursing care, ways the ward can contact help in case of a fall or other emergency, etc. The guardian cannot place the ward in a facility or institution for the mentally ill except by filing a formal commitment proceeding. See Mental Commitment Forms.

In the guardian’s appointment order, the court may require that the guardian get the court’s permission before moving the ward.

The guardian must make sure that the ward is cared for and provided with food, clothing, personal hygiene assistance, transportation, social and recreational opportunities, etc.

The guardian should visit the ward regularly to make sure the ward is being cared for and answer any questions the ward has about the ward’s care. If the ward needs assistive devices like a hearing aid, glasses, dentures, etc., try to arrange for the ward to get them.

Make sure that appropriate programs and activities are provided for the ward. Contact local agencies to find out what is available.

Figure out what the ward likes to do, and try to make it possible for the ward to do it.

The guardian must make sure the ward receives health care (including mental health care) and protection. The guardian should arrange for any physical and mental examinations necessary to determine the ward’s medical and mental health treatment needs. This includes dental, hearing and eye exams. The guardian may consent to medical care, counseling, treatment or other services for the ward.

However, the guardian cannot consent for the ward to:

• have an abortion, sterilization, psychosurgery, or organs removed except when necessary to save the ward’s life or prevent serious harm to the ward’s health.
• withhold lifesaving medical procedures. However, the guardian can allow the stopping or withholding of lifesaving medical procedures when those procedures will only prolong the dying process and offer no reasonable expectation of a temporary or permanent cure or relief from the condition being treated, unless the ward has clearly stated that lifesaving medical procedures must occur.
  Advance Health Care Directive: Find out if the ward signed an advance directive on health care before becoming incapacitated. This document describes a person’s wishes about the medical treatment the person wants to receive if unable to make decisions about it or communicate those decisions. The document may appoint a person to make these decisions for the ward if the ward cannot. If such a document exists, notify the court so the court can clarify who is responsible to make medical decisions. Also, give a copy to the ward’s doctors, hospitals, assisted living home, etc.
• have an experimental medical procedure or to participate in a medical experiment not intended to preserve the ward’s life or prevent serious harm to the ward’s health.

The guardian must also make sure the ward receives services to take care of himself or herself as much as possible. This may include educational and vocational services.

The guardian must make sure that the ward’s personal, civil and human rights are protected by filing lawsuits or taking whatever other action is necessary. The ward retains all legal and civil rights except those that the court has expressly limited or specifically granted to the guardian.

The ward has the right to ask the court to dismiss the guardian or modify the guardianship order. The guardian and other interested parties can also ask the court to review and modify the order.

The guardian cannot:

• consent on behalf of the ward to terminate the ward's parental rights,
• prohibit the ward from registering to vote or from casting a ballot at public election,
• prohibit the ward from applying for and obtaining a driver's license, or
• prohibit the ward from marrying or divorcing.

The guardian has the powers and duties of a conservator (unless a separate conservator has been appointed). That means the guardian or conservator is responsible for managing the ward’s money and property and using those assets to provide the ward’s care (and for any dependent of the ward).

The guardian or conservator must apply for any benefits to which the ward is entitled. That may include health and accident insurance benefits and other private or governmental benefits that would help pay any of the costs of medical, mental health or other services provided to the ward.

The guardian or conservator must:

• find and list all the ward’s property (including cash, uncashed checks, bank accounts, stocks, bonds, real estate, vehicles, insurance policies, furniture, jewelry and other valuables),
• make sure these assets are properly insured,
• list all the ward’s debts (loans, mortgages, credit cards, etc.),
• identify all income sources (pensions, government payments, rents, etc.),
• apply on the ward’s behalf for any benefits he or she may be eligible,
• prepare tax returns (or hire someone to prepare them if the ward can afford it) and pay the taxes (income taxes, property taxes, etc.),
• pay the ward’s bills,
• keep accurate records of the ward’s income and expenses, and
• keep the ward’s property separate from the guardian’s or conservator’s at all times. The guardian or conservator must never use the ward’s property for the guardian’s or conservator’s benefit. You may want to take pictures of the ward’s personal property to document what the ward had at the time you were appointed. Open a checking account, a savings or money market account, and, if appropriate, a safe deposit box, in which you can put money, documents and property belonging to the ward. Open the accounts in your name as “Guardian of the property of (ward’s name)” or “Conservator of the property of (ward’s name).” Use the ward’s social security number for the accounts, not your own.

A full guardian is appointed to have total decision-making responsibilities for the respondent regarding medical, housing, services, legal, and financial areas (if a separate conservator has not been appointed). See the Adult Guardianship Petition Packet, PG-500:

• PG-500 / Cover sheet
• PG-505 / Instructions for Adult Guardianship Petition
• PG-100 / Petition for Appointment of a Full Guardian for an Adult
• PG-115 / Notice of Guardianship Hearing
• PG-117 / Certificate of Service by Certified Mail

See also Powers and Duties of a Full Guardian of an Adult, PG-510.

A temporary guardian is appointed to have authority to provide emergency services necessary to protect the respondent from serious injury, illness or disease for an immediate or time-limited period. An example would be an emergency appointment for an immediate life threatening medical decision. If the judge signs an emergency appointment order, the order will be temporary and will permit the guardian only to provide the needed assistance. It will expire when the court appoints a regular guardian or dismisses the petition for appointment of a guardian. See the Emergency Petition Packet- Adult Guardianship, PG-520:

• PG-520 / Cover sheet
• PG-525 / Instructions for Emergency Guardianship Petition
• PG-101 / Emergency Petition for Appointment of a Temporary Guardian

A partial or limited guardian is appointed whose rights, powers, and duties are less than full guardianship and are specified by court order. In these situations, the respondent is able to perform some, but not all of the functions necessary to care for himself/herself and alternatives to guardianship cannot provide for the respondent’s needs. See the Partial Guardianship Packet:

• PG-103 / Petition for Appointment of a Partial Guardian for an Adult
• PG-115 / Notice of Guardianship Hearing
• PG-117 / Certificate of Service by Certified Mail

A guardian by testamentary appointment is appointed by a will. An example would be when a parent / guardian of a developmentally disabled child indicate in his or her will which other person would be the child's successor guardian. The successor guardian needs to request a Probate Court hearing to get signed Orders. See the Guardianship Packet for Guardian of Minor Appointed in a Will, PG-650:

• PG-650 / Cover sheet
• PG-651 / Instructions for Accepting Guardianship Appointment Made in a Will
• PG-652 / Guardian's Acceptance of Appointment in a Will
• PG-653 / Notice to Minor Ward of Guardian's Appointment and Minor's Right to Object
• PG-654 / Minor's Objection to Appointment of Testamentary Guardian

Almost anyone (except a minor) willing to take on the responsibility can be appointed. The guardian can be a spouse, relative, friend, a private professional guardian, or the public guardian.

There is a preference in Alaska law for the appointment of a family member or a friend as the guardian. When a family member or friend is not able or willing to be the guardian, the court will appoint a private professional guardian, or the Public Guardian. A private professional guardian will provide these services for a fee, usually charging on an hourly basis. Sometimes the person needing a guardian will not be able to pay a private professional guardian. In those cases, the court can appoint the Public Guardian at the Office of Public Advocacy who charges fees based on a sliding scale.

The guardian cannot be someone who:

1. provides substantial professional or business services to the incapacitated person,
2. is a creditor of the incapacitated person,
3. has interests that may conflict with those of the incapacitated person, or
4. works for a person who would be disqualified under Nos. 1-3.

These restrictions do not necessarily apply to the respondent’s spouse, adult child, parent, brother or sister if the court determines that potential conflict of interest is not substantial and the appointment would clearly be in the best interests of the incapacitated person.

The court can appoint co-guardians who are two different people who agree to be guardians. Usually the co-guardians are required to make decisions together about the ward and both sign financial documents about the finances, unless the appointment specifies that each co-guardian can make decisions or sign documents separately. Both co-guardians have to meet the education requirement.

The co-guardians should have excellent communication and trust each other because they need to work very closely together to make decisions in the ward’s best interests.

The court can appoint a guardian only if determines that a person:

• is incapacitated
• needs the services of a guardian to make decisions regarding
  • housing
  • care, comfort and maintenance
  • health and safety
  • ward’s rights
  • finances

AND

• alternative methods of providing services are not adequate.

Generally, the person whom you think needs a guardian should be physically present in Alaska for at least the last six months for the Alaska court to have jurisdiction or authority to do a guardianship case. If this is not the situation, there are exceptions when the Alaska court may have jurisdiction. You should talk to an attorney to see if Alaska is the appropriate court for the guardianship case or whether you need to file the case in another state.

The guardian does not need to live in Alaska. By accepting the appointment as the guardian, you agree that the Alaska court has authority over you as the guardian.

The court may appoint a guardian for a minor child that can be valid until the child’s 18th birthday if:

• The parents died and named a guardian in their will;
• The court has terminated all parental rights by court order;
• The court has suspended the parent’s rights to have custody by court order. This might happen in a Child In Need of Aid (CINA) case when the court gives the state temporary custody of the child to place the child in a safe home.
• The parents’ rights have been suspended by circumstances. This means that for some reason the parents are unable to care and supervise the child on a daily basis and perform normal parenting duties. For example, the parents are in jail, addicted to drugs or alcohol, have serious medical conditions that make them unable to care for the child and they agree a family member or a friend should be the guardian.
  • If the child’s mother or father is alive and there is no court order terminating or suspending the parent’s right to have custody of the child, then the only way a court can appoint a guardian for the child is if the court finds that the parent’s rights of custody have been “suspended by circumstances.” You must explain in the petition for minor guardianship what those circumstances are, giving enough details for the judge to understand the situation.
  • If the parent agrees that his or her rights have been “suspended by circumstances” and agrees that a guardian needs to be appointed, the parent can either come to the court hearing and tell the judge this or fill out and sign a Parent's Consent to Appointment of a Guardian, PG-615 form.

If you are the parent of a disabled child who will be turning 18 in the near future, you may need to consider adult guardianship. A child who is 18 or older is considered an adult, regardless of the presence of a disability. The child’s parents no longer can make medical, legal and financial decisions for the child unless the court appoints the parents as guardians. Adult guardianship is a legal process and the court must find that a person is incapacitated to appoint a guardian.

If you question whether your son or daughter meets the legal definition of incapacity and needs a guardian when he or she turns 18 years old, you may want to consult with other professionals working with your child, especially the medical doctor, for their opinion. Remember that while you may petition for appointment of a guardian, a judge makes the final decision with input from the medical expert and the court visitor. In addition, the court will appoint your child an attorney to represent the child's express wishes or a guardian ad litem if your child is not capable of understanding the process or participating in the attorney client relationship.

Make sure to plan ahead when deciding to file a petition for guardianship because it can take approximately four months for the court to schedule a hearing; it is a good idea to file the petition when your child is approximately 17 3/4 years old.

When the parents cannot care for their child, often a grandparent or another family member takes care of the child. The caregiver may decide whether to go to court to file either a custody case or a guardianship case. If the court awards someone custody or guardianship, the caregiver would stand in the shoes of the parents and make decisions about the child. However, there are different standards for both types of cases and different requirements after the court makes the decision.

Non-parent custody

Minor guardianship

You can delegate any powers regarding care, custody or property of your minor child, except the power to consent to marriage or adoption for up to one year. You can specify what powers the person has regarding the child’s care, custody or property. The parent signing the delegation of powers document only affects their own rights, but not the non-signing parent’s rights. The signing parent can revoke the delegation of powers at any time. You do not go to court for a power of attorney; it is a document you sign out of court. There is no formal reporting required about the actions you take if you have a delegation of powers. This delegation of parental powers is done through a limited power of attorney document:

• PG-701 Power of Attorney Over a Minor by Parent or Guardian

Delegation of powers is not a guardianship. If you need someone to take care of your child for more than 1 year or want someone else to have full powers to raise your child, you can petition the court for a guardianship. There is a court process to become a guardian as well as reporting requirements after being appointed.

A Power of Attorney is power granted to another person to conduct any business that a person could do himself, such as banking, deal with real estate, pay taxes, make business transactions, or any other issue. Powers of attorney are often time-limited. The person granting the power of attorney must have capacity to make that decision and there is no court oversight. The person who has granted the power of attorney may withdraw it at any time. The court is not involved.

You can watch short presentations about:

• What is a Power of Attorney and Who Needs One
• Choices to Make When Completing a Power of Attorney Form
• What Happens After a Power of Attorney Form is Signed
• Special Issues Regarding Power of Attorney Forms

A guardianship occurs when the court appoints a guardian after a legal process to become a guardian. because the person cannot make decision for himself or herself due to legal incapacity. The guardian is required to file reports with the court after being appointed. A guardianship generally takes priority over a power of attorney.

The guardian can be paid from the ward’s money for the guardianship work, but only with a written court order. Also, if the guardian or the guardian’s spouse, parent or child is going to provide room and board for the ward, the guardian must get written permission from the court before using the ward’s money to pay for this.

If you have questions about adult guardianship in general, you can call the Family Guardian Program at (907) 269-3525, messages are checked weekly. You can also e-mail them at family.guardian@alaska.gov. For instance, if you are uncertain what level of protection might be appropriate, they can help you explore other options, including Social Security Representative Payees , a process that does not involve the court.