By The Wyoming LLC Attorney TeamJun 24, 2022
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. When this happens, the courts will designate a guardian/conservator (terminology differs between states) to act as a substitute decision-maker for them.
The guardian has a legal relationship, and thus duty, to act on behalf of the incapacitated (the "ward"). For those who dislike the concept of a guardian, please scroll down to our section on guardian alternatives.
If an individual becomes incapacitated without having prepared specific documents in advance, in some states, a judge may need to officially declare that person as incompetent and appoint a guardian to manage 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. Broadly speaking, individuals are deemed to need 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 interests in mind. Retaining an attorney is often advisable when filing a petition for guardianship.
Protections differ across states. Some require the ward's presence at the hearing, while others merely require notice of the hearing to 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 determine who the guardian should be. To avoid a court decision, everyone can name a guardian 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 identified in a document prepared by the now incompetent person, then people who were closest to the ward, as they are the ones who best know the wishes and desires of the incompetent person.
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 that stemmed from guardianship. 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 annually file an account of the ward's finances, and depending on the state may also be required to report the ward's general 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.
Feel free to explore our articles relating to not only estate planning and elder law but also specialized asset protection strategies for enabling the elderly to qualify for Medicaid without having to lose their home.
Some wish to avoid having a guardian appointed because it entails a significant loss of freedom which some equate with losing their dignity. Elder laws maintain that a guardian may only be imposed on an individual if and only if less severe alternatives have been explored and found ineffective. Examples of guardianship alternatives are:
The process of establishing guardianship is a sensitive issue within Elder Law and should be approached with care. There are alternatives to guardianship, such as a Durable Power of Attorney or Conservatorship, which provide individuals with more control over their decision-making while protecting their well-being.
If you're starting your estate planning journey and need guidance, we recommend contacting an experienced estate planning attorney to get started today and explore the options that best suit your needs.