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Alternatives to Guardianship

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Course Objectives:

This course will help you understand:

  • When to choose an alternative to guardianship
  • Six types of alternatives to guardianship
  • The responsibilities and restrictions for each alternative

How do I get a guardianship?

Questions on how to petition for a guardianship? View instructions in the section “Establishing Adult Guardianship” at the ND Legal Self Help Center.

Where do I get more information?

Review the Legal Self Help Center’s site on Adult Guardianship. You will find important information for guardians including:

  • Rule 59 – qualifications and training for guardians
  • Fillable forms for the reports you will need to file with the court:
    • Petitioning forms for both Emergency and Long-term Guardianships
    • Beginning Inventory and instructions – under “After Adult Guardianships are Established”
  • Annual Report and instructions- under “After Adult Guardianships are Established”
  • Free fillable forms for starting and changing a guardianship

Who pays for the petitioning process?

The costs normally come from the proposed ward’s estate. If a petition has not yet been filed, your proposed ward may qualify for assistance, see the “Guardianship Establishment Program”

Need an attorney or a guardian ad litem?

Contact the State Bar Association of North Dakota or by phone at 800-472-2685.

Your ward may qualify for assistance from Legal Services of North Dakota( http://www.legalassist.org/), or call 800-634-5263. If your ward is over age 60, call 866-621-9886.

Where can I find services and benefits for the ward?

Other resources:

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a
  • Abandonement -

    Leaving a child in another's care without setting a return date or making plans for the child's care.

    LEGAL DEFINITION

    a. As to a parent of a child not in the custody of that parent, failure by the noncustodial parent significantly without justifiable cause:
    (1) To communicate with the child; or
    (2) To provide for the care and support of the child as required by law; or
        b. As to a parent of a child in that parent's custody:
    (1) To leave the child for an indefinite period without making firm and agreed plans, with the child's immediate caregiver, for the parent's resumption of physical custody;
    (2) Following the child's birth or treatment at a hospital, to fail to arrange for the child's discharge within ten days after the child no longer requires hospital
    care; or
    (3) To willfully fail to furnish food, shelter, clothing, or medical attention reasonably sufficient to meet the child's needs

  • Advanced Directive -

    Written instructions for a healthcare provider used when a person is unable to communicate. Also called a Living Will or Power of Attorney for Healthcare.

    LEGAL DEFINITION: 

    A written instruction, such as a living will or durable power of attorney for health care, which guides care when an individual is terminally ill or incapacitated and unable to communicate his/her desires. (E&S)

     

  • Alleged Incapacitated Person -

    A person believed to have an impairment (such as mental or physical illness) which limits the ability to make or communicate responsible decisions such as where to live, and medical or financial decisions.

    LEGAL DEFINITION

    Individual for whom a guardianship proceeding has been initiated. (Florida)

     

b
  • Bond -

    An insurance policy purchased by the guardian. A bond protects the ward’s assets.

    LEGAL DEFINITION:

    An insurance policy designed to protect a ward’s assets by ensuring that in the event of mismanagement, theft, or some other unforeseen occurrence, the ward or a creditor can recoup their loss by asking the court to forfeit the bond.

     

c
  • Child -

    An unmarried individual under the age of 18. 

    LEGAL DEFINITION

    an individual who is:

    a. Under the age of eighteen years and is not married; or
    b. Under the age of twenty years with respect to a delinquent act committed while under the age of eighteen years.

  • Conservator -

    A person who manages a ward’s finances and estate. Unlike a guardian, a conservator does not make personal life choices for the ward such as place of residence.

    LEGAL DEFINITION

    A person who is appointed by a court to manage the estate of a protected person and includes limited conservators. (NDCC 30.1-01-06(8))

     

  • Court Visitor -

    Nurse or social worker who is a special appointee of the court. A visitor will interview the alleged incapacitated person and write a report to the court.

    LEGAL DEFINITION

    "Visitor" means an individual, in guardianship proceedings, who is in nursing or social work and is an officer, employee, or special appointee of the court with no personal interest in the proceedings. (NDCC 30.1-01-06(60))

     

d
  • Deprived Child -

    A child who is without proper parental care or control.

    LEGAL DEFINITION

    A child who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents, guardian, or other custodian

e
  • Emergency Guardianship -

    Guardianship where a guardian is appointed for a short period when an alleged incapacitated person is in immediate risk. By state law, emergency guardianships last 90 days or less.

    LEGAL DEFINITION:

    An emergency guardian may be appointed if the court finds that the process to establish a typical guardianship likely will result in substantial harm to the alleged incapacitated individual's health, safety, or welfare, and that no other person appears to have authority and willingness to act in the circumstances. An emergency guardianship may not exceed ninety days. (NDCC 30.1-28-10.1)

     

     

  • Ex Parte -

    A decision made by a judge without informing all parties. 

    LEGAL DEFINITION

    Legal term meaning literally "from/out of the party/faction of", thus signifying "on behalf of". An ex parte decision is one decided by a judge without requiring all of the parties to the dispute to be present.

  • Ex Parte Order -

    An emergency guardianship put in place without a court order.

    LEGAL DEFINITION:

    An order made by the court upon the application of one party to an action without notice to the other. (Black's)

     

  • Expert Examiner -

    Medical professional who gives a report to the court about the proposed ward’s condition, decision-making ability, and capacity to meet personal needs.

    LEGAL DEFINITION:

    "Expert examiner" means: a. A licensed physician; b. A psychiatrist; c. A licensed psychologist trained in a clinical program; d. An advanced practice registered nurse who is licensed under chapter 43-12.1 within the role of a certified nurse practitioner or certified clinical nurse specialist, who has completed the requirements for a minimum of a master's degree from an accredited program, and who is functioning within the scope of practice in one of the population foci as approved by the state board of nursing; or e. A physician assistant who is licensed under chapter 43-17 and authorized by the state board of medical examiners to practice in this state. (NDCC 30.1-01-06(17))

     

f
  • Fiduciary -

    A fiduciary is a person that acts on behalf of another person to manage money and assets.

    LEGAL DEFINITION:

    An individual, agency or organization that has agreed to undertake for another a special obligation of trust and confidence, having the duty to act primarily for another's benefit and subject to the standard of care imposed by law or contract. (Select)

     

g
  • Guardian -

    A person appointed by the court  to make decisions in a ward's life.

    LEGAL DEFINITION:

    A person or nonprofit corporation that has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, and includes limited guardians as defined in this section, but excludes one who is merely a guardian ad litem. (NDCC 30.1-01-06(22))

  • Guardian Ad Litem -

    Court-appointed attorney who helps the alleged incapacitated person through the guardianship process. This attorney doesn’t represent the alleged incapacitated person’s wants, but rather what the attorney thinks is in the ward’s best interests.

    LEGAL DEFINITION: 

    An attorney appointed by the court to advocate for the best interests of the alleged incapacitated person.

h
  • Healthcare Directive -

    Written instructions for a healthcare provider used when a person is unable to communicate. Also called a Living Will or Power of Attorney for Healthcare.

    LEGAL DEFINITION:

    A written instrument that complies chapter 23-06.5 of the North Dakota Century Code and includes one or more health care instructions, a power of attorney for health care, or both. (NDCC 23-06.5-02(5))

i
  • Incapacitated Person -

    A person who is impaired due to mental or physical illness, disability or deficiency who isn’t able to make or communicate responsible decisions.

  • Interested Person -

    The person that the court finds to have an interest in the guardianship proceeding. If ICWA applies, any tribe in which the child is enrolled or enrollable.

l
  • Least Restrictive Alternatives to Guardianship -

    Decisions made for the ward that place as few limitations as possible on the ward's current lifestyle. 

    LEGAL DEFINITION:

    A mechanism, course of action, or environment which allows the ward to live, learn, and work in a setting which places as few limits as possible on the ward's rights and personal freedoms as is appropriate to meet the needs of the ward. (E&S)

  • Least Restrictive Form of Intervention -

    A decision made for the ward’s wellbeing which removes the smallest amount of personal freedom. For example, setting up home healthcare visitation is a less restrictive than moving the ward to a nursing home.


    LEGAL DEFINITION


    Means that the guardianship imposed on the ward must compensate for only those limitations necessary to provide the needed care and services, and that the ward must enjoy the greatest amount of personal freedom and civil liberties consistent with the ward's mental and physical limitations. (NDCC 30.1-26-01(3))

  • Letter of Guardianship -

    Document issued by the court giving the guardian authority to make decisions on the ward’s behalf.

    LEGAL DEFINITION:

    Formal document issued by the court containing or attesting the grant of some power authority or right. Also called Letters of Office.

m
  • Marshaling Assets -

    The process of identifying, locating, listing, and claiming all of the ward’s assets.

    LEGAL DEFINITION:

    The identification, valuation, transfer, and inventorying of all assets.

     

  • Mediation -

    A process used to facilitate discussions about a guardianship.

  • Mediator -

    A mediator helps the parties to reach an agreement on a parenting time schedule and a plan for reunification.

  • Medical Power of Attorney -

    Written instructions for a healthcare provider used when a person is unable to communicate. Also called a Living Will or Power of Attorney for Healthcare.

    LEGAL DEFINITION:

    A written instrument that complies chapter 23-06.5 of the North Dakota Century Code and includes one or more health care instructions, a power of attorney for health care, or both. (NDCC 23-06.5-02(5))

p
  • Petitioner -

    Person interested in the wellbeing of the ward.

    LEGAL DEFINITION:

    One who presents a formal, written application to a court, officer, or legislative body that requests action on a certain matter. One who appeals from a judgment is a petitioner.

     

  • Power of Attorney -

    Written authorization to act on another’s person’s behalf.

    LEGAL DEFINITION:

    An instrument granting someone authority to act as an agent or attorney-in-fact for the grantor. (Black's)

  • Probate -

    Legal process to establish the validity of a will.

  • Proposed Ward - Another term for an alleged incapacitated person.
  • Publication -

    Attempt to notify a parent who is intentionally absent, in hiding, or at an unknown address.

r
  • Reunification -

    Reuniting a child with their parents. The parent must meet certain requirements and must prove they are now able to adequately care for the child prior to the child being placed back with the parent.

t
  • Testamentary Appointment -

    Naming a person in a will to become the guardian of a child.

  • Transfer -

    Once a guardian has been approved in a probate action, the guardianship is transferred to juvenile court for all further action.

w
  • Ward -

    A person determined by the court to be incapacitated. 

    LEGAL DEFINITION:

    A person for whom a guardian or limited guardian has been appointed. (NDCC 30.1-26-01(6))

     

Resources

Chapter 23-12: Public Health, Miscellaneous Provisions

ND Advance Health Care Planning Resource Guide

Course Content

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