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Examination of Certain State Provisions on Guardianship

FLORIDA: The statute on guardianships for incapacitated persons requires that the court find the “least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs.” The statute also confirms the legislative intent that incapacitated persons function and live as independently as possible, managing their finances and developing their potential for self-sufficiency. To that end, they will be encouraged to develop their living skills to the extent that they may, for example, be able to marry, vote, travel, sign contracts, complete their educational objectives, and apply for a driver’s license.

MASSACHUSETTS: Regarding the guardian of a minor, the statute states that the court will choose the guardian for any minor under the age of fourteen. A minor over the age of fourteen may suggest his or her own guardian and the court will try to honor that request. If the court does not find the guardian desired by the minor to be appropriate, then the court will appoint another guardian. Regarding the care of a mentally ill person by a guardian, the statute declares that a guardian will not have the authority to commit the ward to a mental institution or agree to the administering of “antipsychotic medication” unless the court first finds that such an action is in the “best interests” of the ward and then authorizes such a commitment or treatment. Regarding testamentary guardians, the statute allows parents to appoint such a guardian on behalf of a minor child, even if the child is not born at the time the testamentary instrument is drafted. Such a testamentary guardian will have the same powers and duties as one appointed by the court.

NEW HAMPSHIRE: Regarding the duties of a guardian for a minor, the guardian will “protect and preserve” the personal and real property assets of the minor and any income the comes from rents, income, or the sale of such property. The guardian is also given the authority, with the courts approval, to open a trust to which the minor’s assets can be transferred. This trust would end no later than the ward’s twenty-fifth birthday.

SOUTH CAROLINA: Regarding persons with disabilities, the spouse (if the incapacitated person is married) or parents of an incapacitated person may make a testamentary appointment of a guardian for the incapacitated person in their will. Such an appointment by a spouse or parent becomes effective if, after the incapacitated person and the person giving him or her care or the “nearest adult relative” has received twenty days written notice and “the guardian files acceptance of appointment in the court.” When both a spouse and a parent appoint guardians in their wills, the appointment of the spouse has priority.

Inside Examination of Certain State Provisions on Guardianship