If you are considering obtaining guardianship of someone, you are taking a very serious step to protect that person. When it comes to petitioning the court for guardianship, you assume all of the responsibilities of a parent to a child.
Someone without the ability to make reasoned judgments and decisions about their healthcare and finances can be in need of support and advocacy. They also deserve respect, and to the extent possible, involvement in any decision making about their care.
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In the past, people under guardianship were called “wards.” The term ward nowadays is considered to be derogatory and depersonalized. “Protected person” is the preferred term, and as such is used to describe anyone going through the process of guardianship.
What’s a Guardian?
A guardian is someone responsible for overseeing, managing, and making decisions about someone’s healthcare, housing, property, and assets. If you are the legal parent of a minor then you are their guardian. If someone is over the age of 18, then obtaining guardianship is a legal matter that involves the courts.
In some states, the term “guardianship” is considered to be an overarching term that applies to the legal authority over both healthcare and finances. Other states use the terms “guardianship” to apply to healthcare and housing, and “conservatorship” to apply to assets and property. In those states, it is possible for someone to have legal guardianship, but not conservatorship, or vise versa.
Obtaining guardianship over someone should be a last resort when all other options fail. The duty to protect someone who is unable to manage their affairs is important. But, all of their rights, responsibilities, and ability to make independent decisions are legally removed when they receive guardianship from someone.
On a practical level, this means they lose the right to obtain a marriage license, get married, enter into contracts, vote, or decide where they want to live.
How to obtain guardianship
The process of being appointed as a guardian through the courts is up to the states. However, there are some commonalities.
A petition is usually filed with the court seeking guardianship. Corroborating documentation might be required such as a physician letter stating why the person does not have the capacity to manage their affairs.
The petitioner may have an attorney, but it might not be required. The proposed protected person is appointed an attorney if they do not already have one. However, notices of the hearing are sent to the proposed protected person, the petitioner, and any other interested parties and family members. The proposed protected person is expected to attend the hearing at court unless excused by a physician.
At the hearing, the judge hears the evidence and makes a determination. The proposed guardianship can be contested by other family members with the judge deferring the decision until such time mediation can occur and an agreement is reached. If no agreement is reached, the judge may appoint a professional guardian until family conflicts can be resolved.
Examples of incapacity
Incapacity may be the result of a lifelong problem that has worsened through time. Or, it could be something acquired later in life. Here are some examples:
- Mental illness or intellectual disability. Many people have mental health problems but can manage their lives. Others may have always had a difficult time, but can manage to a point where stressors or life changes make it impossible to function without assistance. Common mental health diagnoses are bipolar disorder, schizophrenia, depression, and anxiety.
- Degenerative diseases. The most common of these is Alzheimer’s disease. Also included would be dementia, Parkinson’s, and Multiple Sclerosis.
- Alcoholism and drug addiction. Severe alcoholism and drug addiction can lead to temporary incapacity. In these cases, the court may issue a temporary guardianship with the expectation that the protected person be ordered to drug or alcohol treatment. Once there is evidence that the person has successfully completed treatment and is no longer incapacitated, the guardianship is terminated.
- Traumatic brain injury. Brain injuries can occur due to all kinds of accidents, resulting in either temporary or permanent impairment.
- Stroke. Strokes can cause permanent disability. Not only can strokes affect someone’s physical ability, but they can impair reasoning and judgment.
Alternatives to guardianship
It may not be possible, but there are some alternatives to guardianship. That way you are preserving a person’s constitutional rights, but establishing some decision making authority if needed.
- Healthcare surrogate or medical power of attorney. Designating a healthcare surrogate or healthcare proxy allows someone to appoint a healthcare decision-maker in case of incapacity. It can also be used by someone who wants a trusted person to assist with decision making before incapacity.
- Financial power of attorney (durable power of attorney). This designates someone to take over your finances in case of incapacity or at such time you want the assistance.
- A trust. A trust is a legal vehicle that allows you to designate a trustee to manage the trust's assets upon incapacity or death. In some cases, the trustees have the immediate ability to manage finances and pay bills if the trustee agrees.
- Case or care management. A professional person who acts in the capacity of a case or care manager can sometimes avoid guardianship. The nature of the relationship needs to be based on trust and cooperation.
Responsibilities of a guardian
A guardian is held to the highest ethical and legal standards. Their work on behalf of the protected person should be responsible, involved, and above reproach, with some of the following decisions required for them to make.
Healthcare and housing
Guardians are responsible for the safety, health, and well-being of the protected person. If at all possible it is recommended that the guardian use a decision-making process based on either substituted judgment or best interest. Substituted judgment is decision making based on the fact that you know the values and preferences of the person you are protecting.
Best interest is used in cases where you may not know what the person wants, so you weigh the pros and cons and do what is in the best interest of that person based on the information that you have.
Decisions include, but are not limited to:
- Scheduling all preventative and urgent medical appointments.
- Consenting to surgical procedures on behalf of the protected person.
- Consenting to all medical treatment.
- Deciding where the person will live.
- Moving the person if it is in their best interest.
In many cases, a person’s finances require protection due to exploitation, fraud, or scams. Sometimes this exploitation comes at the hands of family members. Other times, outside people take advantage of elders by taking cash, withdrawing funds from accounts, and in some cases, persuading the person to marry them.
The responsibilities of a financial fiduciary are complicated and time-consuming, which include the following:
- Prepare an initial accounting of the entire estate for the court.
- Change all accounts to the guardian’s name so bills and funds can be paid and managed.
- Settle all outstanding debts.
- Provide an annual financial report to the court. This would include a detailed accounting of expenditures.
4 Main Types of Guardians
People who have completed their advance directives have designated a person to assume guardianship in the event of incapacity. This is not always the case, however.
There are extenuating circumstances that can dictate the designation of different types of guardians.
1. Family guardian
Family guardians typically have all of the authority and responsibility designated by the court, and are entrusted with the care of the protected person. Most courts prefer for a family member to assume guardianship since they presumably have the person’s best interest at heart.
However, this is not always possible for several reasons:
- Family members may disagree on who should be the guardian. One family may petition the court for guardianship but other family members object. If the conflict is intractable, the court will assign guardianship to someone outside the family.
- Some proposed protected persons don’t have family that is willing to assume guardianship. There may be estrangement or remaining family members are too far away to take on the responsibility.
2. Professional guardian
Professional guardians are companies that assume all of the responsibilities of guardianship. They may be small or large with many available guardians and a large caseload. These companies are approved by the court to charge fees to the protected person’s estate for their services.
More and more states are requiring professional guardians to have some training. Others require certification through the National Guardianship Association.
3. State or public guardian
State guardianship programs are intended to serve individuals who have no other alternative for guardianship. Each state operates its program differently. Offices of public guardianship assume all of the responsibilities of any guardian, but they may have strict participation criteria.
Often there is an income and asset requirement. If a person has sufficient assets to hire a professional guardianship firm, then the state may reject the case. Some states have long waiting lists for guardianship.
4. Guardian ad Litem
A guardian ad Litem is usually an attorney appointed by the court to represent the incapacitated person in the hearing if they are unable to represent themselves.
Their role is to act as an advocate for the proposed protected person during the court proceedings. Once the court proceedings have ended, so does their involvement. Guardian ad Litems do not have the authority to make decisions on behalf of the protected person.
Making the Decision to Elect a Guardian
The idea of taking away someone’s rights can be overwhelming and frightening, for both the petitioner and the proposed protected person. When done well, guardianship can provide a foundation of support, care, and comfort to people in need.