Choosing to declare guardianship is a serious step to take. Managing someone with dementia or mental illness can be very challenging. You may find yourself in more disagreements than you’d like, with some of these becoming rather heated. When it comes to guardianship of an adult, what may be convenient for you may not be what the person wants. Everyone has free agency even to make bad decisions, as long as they have not been deemed incapacitated by the courts.
Jump ahead to these sections:
- What’s Full Guardianship?
- What’s Limited Guardianship?
- 4 Key Differences Between Full and Limited Guardianships
In many cases, it is hard to justify taking away all of someone’s rights just to keep them safe. People make unsafe decisions every day without being under guardianship. Ideally, everyone under guardianship would have a tailor-made, individualized plan that honors their rights to make some decisions, but gives others to the guardian.
It is unknown how many limited guardianships exist across the country versus full guardianships. However, some people are encouraging courts to consider the option of limited guardianships. What are the differences and benefits under each one?
Below, we describe just what defines each one and what may be best if you are considering guardianship as an option
What’s Full Guardianship?
Full guardianship gives someone or a company complete authority to manage healthcare, housing, and finances for an incapacitated individual. Guardianship is obtained by filing a petition with the court that is supported by a letter from a physician or psychiatrist, and other supporting documentation. This documentation attests to the individual’s inability to manage their own affairs.
In the end, full guardianship over someone’s healthcare and finances allows them to do the following:
- Manage and make all healthcare decisions including consenting to treatment, medications, and surgical procedures.
- Make end-of-life care decisions.
- Decide on where the protected person will live.
- Move a person to another housing location.
- Consent to psychiatric treatment and hospitalization.
- Manage and monitor all aspects of someone’s estate including settling debts, paying bills, and making purchases on behalf of the protected person.
- Submit updates to the court on the person’s condition. This includes financial accounting if that is part of the court order.
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How to know if someone may need guardianship
If you are concerned about a family member’s mental state and their ability to take care of themselves, you might be thinking about guardianship. Here are some red flags that might indicate the need for legal intervention such as guardianship.
- Refusing to seek medical care when they need it. Specifically, urgent and life-threatening medical care.
- Hoarding to the point of living in squalid and unsanitary conditions.
- Wandering unsafely. For example, leaving the house in the middle of the winter without adequate protection.
- Alcoholism or drug use that compromises safety.
- Violent or inappropriate behavior.
- Vulnerability to abuse or exploitation. This could be sexual, physical, or financial abuse and exploitation.
- Mental illness that impairs someone’s judgment and safety.
Challenges of guardianship
People who have been deemed incapacitated by the courts still have feelings, thoughts, and opinions. It is not unusual for a protected person to disagree with or not understand the decisions you make. At times, they can disagree to the point where you have to decide how to best handle a volatile situation.
Even with the authority of guardianship, you can’t physically make someone do something they don’t want to do. Families often seek guardianship because they think it will allow them to control someone and decide what they should do. Just as with any challenging relationship, respectful communication encourages a better outcome.
Obtaining full or limited guardianship
The serious nature of guardianship dictates that a certain process must be followed. Each state has its own legal process for obtaining guardianship. Unfortunately, guardianship can be used for unscrupulous purposes such as gaining authority over someone’s estate. Accusations from other family members can also derail a guardianship proceeding. It is not uncommon for family conflict to drag out guardianship proceedings for months, and often may never be resolved.
If another family member contests the petition for guardianship, the judge might send the case to mediation. In the meantime, a temporary appointment from a professional company will protect the person until an agreement can be reached.
However, the basic process of filing for full or limited guardianship is through the following steps:
- File a petition for guardianship with the court.
- Corroborating documentation must be presented, such as a letter from a physician, a psychiatrist, or reports from Adult Protective Services.
- The proposed protected person is required to be in court unless excused by a physician. The proposed protected person also has a right to legal counsel which will be provided to them if they can’t arrange it themselves.
- A hearing is scheduled and the evidence presented to the judge. If another family member objects to the guardianship, mediation is recommended.
- If there is no one to contest the guardianship, the judge makes a decision.
- If there is a previous Power of Attorney (POA) document, this can complicate the situation. The POA may designate someone other than the person petitioning for guardianship. The presiding judge will make a determination about which document takes precedence.
What’s Limited Guardianship?
Limited guardianships are intended to honor and give the individual legal authority to make specific decisions about their lives.
These decisions are spelled out in the detailed letters of guardianship. Decisions not specified in the order are up to the appointed guardian to make. If in the future, limited guardianship is not working out, the guardian can petition to have the orders changed to a full guardianship.
4 Key Differences Between Full and Limited Guardianships
There are key differences between full and limited guardianship. The core principle that separates the two is the opinion of the court about what a person can and can’t safely do.
1. Degree of decision-making authority
In a limited guardianship, a person’s authority is relegated only to what the order states, and no more. Therefore, decisions that the protected person can make will be allowed based on the order from the court.
In a full guardianship, the guardian is given complete authority over all of the health, housing, and financial decisions for the protected person. A full guardian can take charge when it comes to big-ticket decisions, from creating an online will for free with FreeWill to housing decisions.
2. Assumptions about capacity
Even people with full capacity to manage their own lives have good days and bad days. You may have had the experience of making a bad decision because you were stressed or sleep-deprived.
Human behavior is complex and difficult to predict. Considering whether a full or limited guardianship is necessary means evaluating a person in terms of what they can do—not just what they can’t do. This is a tricky balance between honoring someone’s abilities while still keeping them safe.
Without question, there are many cases that clearly call for a full guardianship due to the individual’s inability to safely manage any aspect of their lives. But in other cases, areas of capacity should be considered in deciding between full and limited guardianship.
3. Complexities of the petition
Identifying the tasks that a person is able to do can be a challenge in filing for limited guardianship. For example, let’s say that the protected person can manage their healthcare reasonably well, but can’t keep track of their finances.
The petition can state that the person has the right to make their own healthcare decisions but needs help with finances. The guardian can then manage all finances but must allow the protected person to make their own healthcare decisions.
Other more complicated petitions might break it down even further. A person might be able to make decisions about where they want to live, but need help with healthcare decisions. We all make mistakes, and even people under limited guardianship have the right to make mistakes as long as they aren’t endangering themselves or others.
In filing for full guardianship, the petition is more straightforward since you are asking for full authority over all healthcare and finances.
4. The autonomy of the protected person
Giving the protected person the opportunity for autonomy should still be a core principle in full guardianships. This might mean allowing the person to make choices that do not have serious or unintended risks. For a person under limited guardianship, areas of autonomy are identified.
In either a full or limited guardianship, a principle of “informed consent” should be used whenever possible. The use of informed consent most often applies to medical decisions, but can apply to almost any decision. This means explaining to someone the purpose of a decision or intervention, which includes the risks, benefits, and consequences of a certain decision. “Informed consent” also involves sharing and disclosing alternative options.
Granted, a person under guardianship might not understand or agree with the choices made on their behalf, but they have the right to be given the opportunity to try.
Full vs. Limited Guardianship
If you are considering guardianship for a loved one, talk with an elder law attorney about your options. There may be less intrusive ways to help support someone like financial and healthcare power of attorney, bill paying, or setting up a trust.
Removing someone’s constitutional rights is consequential. Looking at the possibility of limited guardianship will acknowledge a person’s abilities to decide for themselves. It might be a harder road to take, but can be the right one for you and your loved one.