Guardianship proceedings typically begin when an elderly person becomes unable to care for themselves. If this is the case in your family, you will need to petition the state to have them adjudicated “incompetent.” After this is done, a “Guardian of the Person” and “Guardian of the Estate” need to be named. In some cases, these are both covered by a family member, but in many cases, an attorney from the Whited DelForge & Henkle, PLLC has served as “Guardian of the Estate.”


Guy Dawson Rouse: Guardianship proceedings are typically initiated in our experience here when an elderly person becomes unable to care for themselves anymore. Once that happens, you can’t have them sign a general power of attorney or a healthcare power of attorney because they lack the capacity to contract. At that point you have to petition the state to have them adjudicated incompetent. We do file petitions for incompetence generally on behalf of a daughter or son—or it can be anyone—but that’s typically who it’s for. Then if they are adjudicated incompetent, the next step is who is going to serve as their guardian?

A general guardian embodies two different things, guardian of the person and guardian of the estate. Generally a family member will serve as guardian of the person and oftentimes as guardian of the estate as well. Unfortunately, it depends on the assets that the elderly person or otherwise incompetent person has. You have to be bonded by the insurance company for 125 percent of what their assets are. A lot of people don’t have the ability to get bonded for that. Attorneys typically will serve as a guardian of the estate. We do guardianship of the estate work for a lot of clients here at the Whited DelForge & Henkle, PLLC.