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GuardianshipWe don’t like to believe that we – or someone we care about – will become incapable of making health, personal or financial decisions because of illness or disability. But it does happen. Guardianship isn’t something that most people plan for, but it can be an essential protection if someone cannot take care of themselves or their property. It happens when children with severe developmental disabilities become adults. Or when an adult is brain injured in a car accident. Or when an older person loses the ability to make these decisions due to dementia. If these happen, a court decides if guardianship is necessary and may appoint a guardian to make decisions.On the other hand, perhaps you wonder if a family member needs a guardian. Perhaps a health care professional recommends that your spouse or parent needs a guardian. As a family member, you may be called upon to serve as guardian. A guardian could also be a friend or a professional guardian. In some cases, it might be a public guardian (a state agency), a bank, a volunteer, or a not for profit agency. The court decides who the guardian will be. The court also decides how much authority to give to the guardian. A guardian might be appointed only to make decisions about living arrangements, personal needs and medical care. Or, a guardian (sometimes called a conservator) might be appointed only to make decisions about finances and property. The same person or agency could be appointed to make both kinds of decisions. A person with a guardian may be called a “ward,” an “incapacitated person” or a “protected person.” Guardianship is supposed to be limited to meet the specific needs of the ward.
Avoiding Guardianship/ConservatorshipGuardianship should be a last resort. When a guardian is appointed, people lose rights to make basic decisions about their life and property. The proceeding can be expensive and emotionally difficult.You can use several legal planning tools to help you avoid guardianship. These documents allow you to make your own choices based on your values and wishes and to pick the person you want to step in to carry out your wishes. For financial decisions, use a durable power of attorney or a trust. For health care decisions, use a health care power of attorney. Using these, you can select who you want to act for you when you can’t make your own decisions. You can give directions on the decisions you want made. If you don’t have these documents, then a court appointed guardian may not make the decisions you want. Deciding to file for guardianship for a family member is never easy. For example, you have noticed that your father is having a hard time managing his finances. Before thinking about guardianship, look for other ways he can get help. He may want to appoint a financial agent or enroll in a money manager program. Get professional assistance in determining what decisions your father can make and where he needs assistance. A geriatric assessment may pinpoint specific areas where he can act on his own.
Establishing GuardianshipEvery state has specific procedures to determine the need for a guardian. If you think someone needs a guardian, first talk with a Attorney about the requirements in your state. In general, someone must file a petition with the court explaining why the person needs a guardian and who is qualified to be appointed.An examination by physician, psychologist, or psychiatrist may be necessary. Notices of the proceeding are given to the individual and to others interested. A court visitor may interview the person, review the circumstances and report back to the judge. A Attorney may be appointed to represent the person, or the individual may hire a Attorney. At the court hearing, a judge will hear evidence about why the person needs a guardian. In most states, the person will attend the hearing if at all possible. The cost of petitioning for guardianship can be several thousand dollars.
Serving as GuardianIf you are appointed as a guardian (or conservator), the court’s order will tell you what decisions you are allowed to make. You may have just a few powers or need to make most decisions on behalf of your ward. You must carefully understand the line between what you can decide and the rights that your ward keeps. You must try to make choices based on the ward’s values and to involve the ward in making decisions whenever possible.What you can do depends on the court order and state law, but if you have authority over property you will at least need to: Find and protect the ward’s assets Set up separate accounts with the ward’s funds Spend the ward’s money only for the ward’s care and needs Keep detailed records of all expenditures Keep the ward’s property in good repair and insured Carefully invest the ward’s resources File inventories and accountings with the court Get directions from the court before taking major actions If you have authority over your ward’s personal affairs, the list of responsibilities can be quite long, depending on your ward’s needs and the court’s order. You may need to: Make sure the ward is living in the most appropriate location Arrange for caregivers, social activities, transportation Consent to medical treatment such as surgeries or medications Supervise hygiene, meals, and clothing Provide for any physical, speech, or occupational therapies Frequently visit the ward and try to improve the ward’s quality of life Report to the court on the care you are providing Being guardian for someone else is a major undertaking.
You will need to be in frequent contact with the court and your attorney to make sure you are properly acting on behalf of your ward. Most states have handbooks for guardians to help them with their responsibilities.
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