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About the Author vii
Introduction xi
An Overview of Guardianships and Conservatorships
The Individual's Right to Self-Determination 1
Advance Planning for Incapacity 2
Guardianship and Conservatorship Defined 2
Terminology 3
The Uniform Probate Code 4
The Uniform Guardianship and Protective Proceedings Act 4
The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act 5
Guardianship of a Minor
In General 7
Purpose 8
Duties and Responsibilities 8
Basic Responsibilities 8
Custody 8
Education 9
Residence 9
Medical Treatment 9
Support and Services 10
Visitation 10
Driver's License 10
Military Service 10
Marriage 10
Misconduct 10
Additional Responsibilities 10
The Guardianship Petition 11
Filing the Petition 11
Determining the Venue 11
Notice Requirement 11
Consent Requirement 12
The Guardianship Investigation 12
The Home Study 13
The Guardianship Hearing 13
Letters of Guardianship 13
Limitations 14
Termination of the Legal Guardianship 14
Duration 14
Removal 14
Resignation 14
Adoption Distinguished 15
Guardianship of an Incapacitated Adult
In General 17
Determining Incapacity 17
Duties and Responsibilities 18
The Guardianship Petition 19
Filing the Petition 19
Eligible Petitioners 19
Procedural Steps 20
Required Information 20
Determining the Venue 20
Notice Requirement 21
Withdrawing the Petition 21
The Guardianship Investigation 22
The Medical Report 22
The Guardianship Hearing 23
Contested Case 23
Uncontested Case 23
Letters of Guardianship 24
Limitations 24
Appeal Rights 24
Limited Guardianship 25
Voting Rights 25
Mental Health Guardianship and Civil Commitment
In General 27
Mental Illness 27
Role of the Guardian 28
Challenging the Guardianship 28
Civil Commitment 29
Required Standard 29
O'Connor v. Donaldson 29
Addington v. Texas 30
Civil Commitment Procedure 31
Challenging Confinement 31
Standby Guardianship
In General 33
State Standby Guardianship Laws 34
Establishing the Standby Guardianship 35
Petition 35
Written Designation 35
Activating the Standby Guardian's Authority 36
The Court Hearing 37
Rights of the Non-Custodial Parent 37
Notice Requirement 38
Maintaining Parental Authority 38
Revoking the Standby Guardianship 38
The Uniform Guardianship and Protective Proceedings Act 39
Conservatorship: Protecting the Property of the Ward
In General 41
The Role of the Conservator 41
Fiduciary Role 41
Costs and Expenses 42
Qualifications 42
Duties of the Conservator 42
Manage the Estate 43
Make Prudent Investments 43
Keep Estate Assets Separate 43
Interest-Bearing Accounts 43
Blocked Accounts 44
Miscellaneous Restrictions 44
Inventory the Estate 45
Locate Estate Property 45
Determine Value of Estate 45
File Inventory and Appraisal 45
Obtain Insurance Coverage 45
Record Keeping 45
Accounting 45
Powers of the Conservator 46
Without a Court Order 46
With a Court Order 46
Estate Planning 47
The Conservatorship Petition 47
Filing the Petition 47
Determining the Venue 48
Notice Requirement 48
Petition to Appoint Temporary Conservator 48
The Conservatorship Hearing 48
Letters of Conservatorship 49
Appeal Rights 49
Limitations 49
Ending the Conservatorship 50
Alternatives to Guardianship and Conservatorship
In General 51
Will Provision Appointing a Guardian for a Minor Child 52
The Living Will 53
Purpose 53
Requirements 53
Competency 53
Diagnosis 54
Form 54
Witnesses 54
Medical Condition 54
Life-Sustaining Treatment 55
Pregnancy Exclusions 55
Amending or Revoking Your Living Will 56
Durable Power of Attorney for Health Care 56
Purpose 57
Persons Authorized to Make Health Care Decisions 57
Health Care Agent 57
Alternate Health Care Agent 57
Court-Appointed Guardian 58
Surrogate 58
Relative 58
Exclusions 58
Treatment Decisions 59
Durable Power of Attorney 60
Executing the Durable Power of Attorney 60
The Meaning of "Durable" 61
Revoking the Durable Power of Attorney 61
Social Security Representative Payee 62
Authority of the Representative Payee 62
Necessity of the Representative Payee 62
Appointment of the Representative Payee 62
Duties of the Representative Payee 63
Use of Benefits 64
Current Maintenance of the Beneficiary 64
Support of the Beneficiary's Family 64
Debts of the Beneficiary 64
Accounting Requirement 64
Replacement of the Representative Payee 65
Restoring the Beneficiary as Payee 65
Trusts 65
Revocable Living Trust 66
Joint Tenancy Accounts 66
Skills Training 66
Advance Designation of Guardian 67
Appendices
Guardianship Authorization Affidavit 69
Petition for Guardianship of a Minor 73
Notice of Guardianship Hearing 77
Letters of Guardianship 81
Order Appointing Guardian of Minor 83
Capacity Declaration 87
Petition for Appointment of Standby Guardian 91
Petition for Appointment of Conservator 97
Petition for Appointment of Temporary Conservator 105
Letters of Temporary Conservatorship 109
Order Appointing Temporary Conservator 111
Letters of Conservatorship 115
Order Appointing Conservator 119
Will Provision Appointing A Guardian for a Minor Child 123
Living Will 125
Table of State Living Will Statutes 129
Durable Power of Attorney for Health Care 133
SSA Request to be Selected as Representative Payee (Form SSA-11-BK) 137
Glossary 151
Bibliography and Additional Resources 173
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