For many, the thought of aging can create anxiety, especially when it comes to losing the ability to think clearly enough to make decisions for yourself. You may worry about what you will do if that time comes. How will you care for yourself?
The concept of guardianship may help put your mind at ease.
In this guide, we’ll discuss the what, how, and why of guardianship.
What Is Guardianship For Aging Individuals?
When an aging individual becomes unable to make decisions for themselves or communicate their wishes, guardianship may be necessary. Guardianship is a legal relationship in which one person, called a guardian, is given the authority by a court to make decisions on behalf of another person, called a ward.
The guardian has the responsibility to act in the best interest of the ward and make decisions regarding their care, including where they will live, what medical treatment they will receive, and how their finances will be managed.
Aging individuals may need a guardian for many reasons, including dementia, stroke, Alzheimer’s disease, or other conditions that cause cognitive decline.
Depending on the state, different terminology may be used when talking about the subject. In some states, guardianship empowers an individual to make decisions about where the ward lives, health care decisions, and more. The term conservatorship, on the other hand, is used to refer to the management of a ward’s financial affairs, like paying bills, investments, etc.
Types of Guardianship
Broadly speaking, there are three types of guardianship arrangements:
- Guardianship over the person – This type of arrangement gives the guardian authority to make decisions about the ward’s daily care, including where they will live, what medical treatment they will receive, and more.
- Guardianship over the estate – This type of arrangement gives the guardian authority to manage the ward’s finances, including paying bills, making investment decisions, and more.
- Guardianship over both the person and the estate – In this arrangement, the guardian has authority over both the ward’s daily care and their finances.
Note: even if a person is given guardianship over a person’s estate, they don’t have the freedom to use the assets however they wish. Usually, the assets must be placed in a “blocked account“, and these assets cannot be accessed without an order from the court.
In What Circumstances Is A Guardianship Necessary?
There are numerous circumstances in which an aging individual may need a guardian.
Aging individuals may lose the ability to make decisions about their own care due to dementia, Alzheimer’s disease, stroke, or any number of other conditions that cause cognitive decline. In these cases, it is in the best interest of the aging individual to have someone else make decisions on their behalf.
Aging individuals may also need a guardian if they are not able to communicate their own wishes. This can be due to a number of reasons, such as a stroke or Alzheimer’s disease.
In some cases, an aging individual may have never been married or had children, and therefore have no close relatives to make decisions on their behalf. In other cases, the aging individual’s family may live far away or be unable to agree on important decisions.
What Individual Rights Are Affected By Being Assigned A Guardian?
A good guardian will always consider the desires and preferences of the ward when making decisions that affect their quality of life. Additionally, the court will only assign power to the guardian in areas where it has been demonstrated that the ward is incapable of making decisions.
These areas could include:
- End-of-life care
- Living arrangements
- Medical decisions
- Financial management
- File lawsuits
- Own firearms
How Do You Become A Person’s Guardian or Conservator?
If one of your parents or relatives is experiencing significant dementia, what is the process for becoming their guardian or conservator?
The first step is to file a petition with the court in the county where the potential ward lives. The petition must state that the individual is unable to take care of themselves or make decisions and name the petitioner as the proposed guardian or conservator.
The court will then appoint an expert to investigate the statements in the petition and report back to the court. If the court finds that the allegations in the petition are true, guardianship or conservatorship is necessary, and that the petitioner is competent to ask in said position, the court will give them the right to manage living arrangements, finances, and other items.
Establishing a guardianship can be a time-consuming and costly process, especially if there is disagreement among family regarding whether a guardian is needed and who that individual should be.
Following Due Process
Because establishing guardianship involves removing numerous rights from the ward, there is a significant amount of due process that must be followed. Steps include:
- Give notice to the potential ward and all interested parties regarding the filed petition and when the hearing will take place
- Ensure the ward and other parties are represented by individual counsel
- Ensure the ward is able to attend all hearings/proceedings
- Provide ward the opportunity to cross-examine all witnesses
- Allow ward to present evidence on their behalf
- Require clear and convincing proof before establishing guardianship
The court can specifically limit the powers and rights given to the guardian and the guardian’s authority is specifically defined by the court. Generally speaking, the guiding principle followed by courts is to establish the least intrusive measures and allow the ward as much autonomy as possible.
Who Can Be A Guardian Or Conservator?
The court will appoint a guardian or conservator if it is in the best interest of the ward. The court will consider many factors when making this decision, including the wishes of the potential ward, the relationship between the proposed guardian and ward, whether there are any conflicts of interest, criminal background, credit history, and more.
In some cases, there may be more than one qualified individual. In this case, the court will decide who is the best fit for the position. In other cases, more than one person may be appointed as guardian or conservator. For example, one person may be responsible for making medical decisions while another manages finances. When responsibilities are split amongst family members, it’s often fruitful to use a communication tool, such as WayWiser, to help coordinate all aspects of care and responsibility.
In most states, preference will be given to an individual who knows the ward best, such as their spouse, children, or relatives. If there is no one qualified or willing to act as a guardian, the court may appoint a professional guardian.
What Is A Court-Ordered Guardian?
A court-ordered guardian is an individual who has been appointed by a judge to make decisions on behalf of another person. The guardian has the responsibility to act in the best interest of the ward and make decisions regarding their care, including where they will live, what medical treatment they will receive, and how their finances will be managed.
There has been significant debate over this subject in recent years due to the court-ordered conservatorship over Britney Spears. The publicity highlights the sad reality that these types of situations often strip the ward of many of their rights. In some cases, however, it is the only way to acquire the legal authority to make important decisions on someone’s behalf.
What Are A Guardian’s Duties and Responsibilities?
The duties and responsibilities of a guardian can vary depending on the state in which the guardianship is established and the specific needs of the ward.
In general, however, a guardian has the following duties:
- To keep the court informed about the ward’s welfare and whereabouts
- To make decisions in the best interest of the ward
- To provide for the ward’s physical and emotional needs
- To protect the ward from harm
- To help the ward develop skills and abilities to the maximum extent possible
As much as possible, the guardian or conservator must ask the ward for their input on decisions. Additionally, a guardian can only act in areas specified by the court. In some situations, such as when a guardian will be gone for an extended period of time, responsibilities will be delegated to other individuals.
To ensure that the ward is being well-treated by the guardian or conservator, courts often require regular reporting and financial accounting about decisions made on behalf of the ward. Depending on the significance of a decision, the court may require prior approval.
Are Guardians Compensated?
Court-appointed guardians are provided reasonable compensation for their services. A spouse, friend, or relative serving as guardian will not usually charge for their efforts. If a private guardian is put in place by the court, they are paid out of the ward’s estate. The amount they can charge is set by state law and must be approved by the court. Public guardians are paid through public funds, such as charitable organizations.
What Are Alternatives To Guardians and Conservatorships?
Some of the goals of guardianship can be achieved through other means. Alternatives include:
- Case/care management
- Supportive services
- Financial planning
- Living wills
- Joint checking accounts
- Durable powers of attorney
These alternatives allow the individual to maintain as much independence and control over their life as possible. Additionally, they are often less restrictive and less expensive than guardianship.
Can The Rights Of The Ward Be Restored?
Ultimately, the end goal of a guardianship is to restore the individual’s rights and ability to make their own decisions. Granted, this may not be possible in many older individuals dealing with dementia or other incurable conditions. However, the goal should still be restoration if at all possible. The court can regularly review the guardianship arrangement to determine whether it is still necessary. If the ward has regained the capacity to make their own decisions, the guardianship will be terminated.
Getting Started With Guardianship
If you think that there may come a point in your life when you will need a guardian, consider having a conversation with your loved ones about the subject. Ideally, they will be the ones who eventually move into the guardian role and take care of your affairs in a way that is most in line with your desires.