What is Guardianship ?
Guardianship is legal process where a guardian is appointed for an incapacitated person or a minor.
This process is designed to protect the incapacitated person by providing for that person’s care and/or management of his or her estate. A guardianship authorizes another person to act and make decisions on behalf of the incapacitated adult or minor child.
Who Needs a Guardian?
Guardians are often appointed for an incapacitated adult. This is someone who is aged over 18 who is not able to look after their own affairs. The reasons are varied, but include mental or physical illness, disability due to age, or infancy (not being of legal age to make decisions). Incapacity is the absence of legal ability and competence to care for oneself and one’s property.
Guardians are also appointed for minor children without parents. A minor child’s guardians are usually his/her parents until the age of 18. A child without parents will be assigned a guardian by the court.
When is a Guardian Appointed?
Guardians are appointed when someone (usually a family member) has progressed to the state where others become concerned that they cannot care for themselves. They may even be a risk to themselves. The concerned individual can then go to the court to request to be appointed as a guardian. The first step is usually to talk to an attorney, but it’s also important to discuss the issue with other members of the family.
Guardianship might be a difficult process fraught with conflict, only used when absolutely necessary. It can be best used when someone’s judgment or capacity is impaired or there is a major threat to an individual’s health and welfare. This usually requires an examination by a qualified physician. The process is also helpful when there will be many decisions made over a long period of time.
What does a Guardian do?
The most important consideration for the court is whether a guardianship will benefit the incapacitated individual and is appropriate under the circumstances. The right guardian will take the wishes and desires of the person under guardianship seriously. This includes making decisions about medical treatments, residence, finances and even end-of-life decisions. Courts will only remove those rights the proposed person under guardianship is actually incapable of handling.
Guardians can make significant decisions for the individual. Apart from consent to medical procedures and medications , the guardian can make decisions regarding education, living arrangements, financial decisions and legal representation. While funds belonging to the incapacitated person remain the property of the person, a guardian can be in charge of financial decisions. However, the guardian must keep his ward’s funds separate from his/her own funds and be prepared to provide a full accounting to the court. Additionally, the guardian is an advocate and can act on behalf of the incapacitated party in court.
A guardian can also encourage or limit important relationships and conditions, though laws usually require that the guardian must make decisions that abide by the incapacitated person’s values and preferences. Nonetheless, a guardian might need the weigh the benefits of visitations with the need to restrict contact due to undue influence, abuse or other conflicts.
If you do become the legal guardian for your loved one, take special care to do what you think they would have wanted in their lucid days. It’s a big responsibility to take on and you don’t want to take advantage of it.
What are the Types of Guardianships?
A “guardian of the person” gives the guardian authority to make decisions about the ward’s personal affairs. If the ward owns property or inherits property or an estate, the ward would also need a “guardian of the estate”. In most cases only a guardian of the person is needed.
Guardianships can be full or limited. Full guardianship gives someone or a company complete authority to manage healthcare, housing, and finances for an incapacitated individual. Limited guardianships are intended to honor and give the individual legal authority to make specific decisions about their lives. The differences lie in the amount of decision-making a guardian can do, the assumptions about the ward’s incapacity, complexities of the ward’s rights, and the autonomy of the protected person.
What are Alternatives to Guardianship?
Because guardianship often compromises the right of a protected person, there may be a reason to consider less drastic alternatives. One alternative is getting a power of attorney, which allows someone to act on the principal’s behalf in all personal financial transactions and affairs. A general power of attorney allows broad control over the fairs but ends upon death of the principal Unlike a general power of attorney, a durable power of attorney does not cease in cases of illness or disability. This allows decisions about the incapacitated person’s welfare to be made in private, rather than in court.
Supported decision making is an informal or formal process in which individuals are assisted with making decisions themselves. The individual is not incapacitated, but may be suffering from an intellectual or developmental disability. Supported decision making is an alternative to guardianship which allows the individual to decide their own lives, but still has support to explain matters and alternatives to them. There is no one-size-fits-all supported decision-making agreements law, but it is increasingly popular as it reduces the risk of abuse, exploitation or neglect by a guardian.
The decision to appoint a legal guardian for an adult should not be taken lightly. Sometimes, proper estate planning can avoid the need for court-supervised guardianship. In other cases, there might be an alternative which safeguards the incapacitated person’s autonomy. The decision is a complex one and often depends on the individual circumstances of the people involved.
Krupa Downs Law, PLLC can advise you on guardianship law, assist you with obtaining guardianship, and help you comply with what the law requires of a guardian.