What is A Guardianship?

Guardianship is a court action appointing someone to make decisions for you when you become incapable of making your own decisions due to an illness or when the incapacity endangers your health or safety.

Guardianship may severely limit your freedom to decide how to live your life.

What Are The Different Types of Guardianship?

There are two types of guardianships, a full guardianship or a limited guardianship.

• Under a full guardianship, the guardian is given the authority to make all decisions for you including:

                  1) deciding where you live (i.e. nursing home, apartment);

                  2) authorizing medical treatment;

                  3) handling legal matters;

                  4) handling financial matters;

• Before ordering a full guardianship, courts in North Dakota are required to consider a limited guardianship.
• Under a limited guardianship the guardian is given the authority to make only those decisions which you are unable to make.
• For instance, a limited guardian may be given the authority to arrange for medical treatment but not decide where you will live.

Who May Be Appointed Guardian?

The law states that any "competent person" or "suitable institution, agency, or non-profit group home" may be appointed guardian of an incapacitated person. However the following people are given priority to be appointed guardian. They are listed in order of priority:

1) a person named in a durable power of attorney;
2) a spouse;
3) an adult child;
4) a parent;
5) a relative with whom the person has been residing for the past
six months;
6) volunteer agency;
7) any appropriate government agency;
8) someone chosen by whoever has been caring for or paying benefits for you.

How Will I Know If Someone Seeks a Guardianship Over Me?

You and your closest relatives must be notified in writing. If you do not want
this to happen, you can challenge the action.

You have the right to a hearing. You have the right to consult an attorney, and your attorney may be present during the hearing.

You have a right to bring witnesses to testify for you.

You can have your own doctor testify. Your attorney can ask questions of the witnesses against you.

How is A Guardianship Terminated?

A guardianship can be terminated if:

1) You or guardian dies; or
2) You or any interested party requests the court redetermine the need for a guardianship.

The court will hold a new hearing and consider new evidence. If the court finds that your abilities have changed, the court can limit or terminate the guardianship.

What Are The Alternatives To A Guardianship?

There are a number of alternatives to guardianship.

1)Giving someone else the authority to make decisions through a power of attorney. (must be created before a person becomes incapacitated).
2) Direct deposit.
3) Joint bank accounts.
4) Home Health Care.
5) Meals on Wheels.

If an alternative is not possible, the court must use the least restrictive form of intervention and the guardian must involve the ward in all decision making.

March 2006
N.D. Cent. Code § 30.1-28 (1996 & Supp. 2003).
Published in conjunction with Department of Aging Services -Title III.