Guardianship is a sensitive issue within Elder Law. Near the end of life adults can become incapable of making responsible decisions for themselves due to illness or other disabilities. The courts will designate a guardian/conservator (terminology differs between states) to act as a substitute decision maker in these cases. The guardian has a legal relationship, and thus duty, to act on behalf of of the incapacitated (the "ward"). For those who dislike the concept of a guardian, please scroll down to our section on guardian alternatives.
Should someone become incapacitated without having these documents, then, depending on the state, a judge is required to declare an individual incompetent and to declare a guardian for their affairs. The guardian can be authorized to make health, legal and financial decisions. Less frequently, a limited guardianship occurs when someone can make some decisions, but not others, and so the court may declare a guardian for just those areas.
Standards for declaring someone incapacitated vary by state. Further, whether a comprehensive guardianship, or just a limited guardianship concerning e.g. finances, is being sought matters. Broadly speaking, individuals are deemed to need a guardianship when they cease to demonstrate the capacity to make responsible decisions. Merely making poor decisions is not sufficient. The individual must lack the ability to make responsible decisions. And, to be certain, merely having a disability or mental illness is not sufficient grounds in and of itself to constitute incompetency. Wrong article? View our probate pages and power of attorney pages.
Most jurisdictions enable anyone concerned about an individual's well being to file a petition for guardianship. This should not cause worry, though, as the standards for declaring someone incompetent are strict and guardians must always act with the ward's best intersts in mind. Retaining an attorney is often advisable when filing a petition.
Protections differ across states. Some require the ward's presence at the hearing, while others merely require notice of the hearing be provided. Regardless, the ward is most often required to have legal representation of some sort to ensure due process. This means a court appointed attorney will be given should the ward lack the necessary finances to secure their own attorney.
The purpose of the hearing is to determine the individual's competency. If found incompetent, the next step is to determine the extent of assistance required and determines whom the guardian should be. Determining the guardian can be done ahead of time through a Durable Power of Attorney. There are even professional guardians available, (an unrelated party with specialized training). Judges generally provide first consideration to those who were closest to the ward as they best know their wishes and desires.
Guardians are granted far-reaching authority for managing the ward's affairs. Financial, legal and health care decisions are all under the guardian's purview. With this power comes great responsibility, and in unfortunate cases there are examples of elder abuse. Guardians are required to act in the ward's best interests. These reasons have driven the courts to hold guardians accountable through a number of means.
The guardian often inventories property, invests funds to be used for the ward's support, and is required to file detailed reports with the court. Certain financial transactions also require court approval beforehand. Guardians are required to annualy file an account of the ward's finances, and depending on the state may also be required to report the one the ward's generall well-being and mental/physical state. If the guardian cannot demonstrate they have adequately supplied the ward with residential arrangements, health care and other services, then they may lose their status and be replaced.
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Some wish to avoid invoking a guardian because it requires a significant loss of freedom which some equate with losing their dignity. Elder laws maintain that a guardian may only be imposed if and only if less severe alternatives have been explored and found ineffective. Examples of guardianship alternatives are: