Guardianship & Conservatorship
When an older adult loses the ability to think clearly, it also affects their ability to make informed and meaningful decisions. This may occur due to the onset of Alzheimer’s disease or other related dementias, stroke, brain injury, mental illness or other serious health issues. If the person you are caring for is unable to make rational, clear-headed decisions about their health care, finances or other aspects of life, seeking legal guardianship may be necessary to ensure their safety and quality of life.
What Is Guardianship for Elderly Individuals?
Guardianship is an option in cases where an older adult has not appointed a power of attorney for health care or finances and is incapacitated due to advancing age, illness or disability. Even if an individual has named a power of attorney (POA), guardianship may still be necessary if their POA is not durable, meaning it ends upon their incapacitation. Courts most commonly see family caregivers seeking guardianship for adults with dementia who did not make proper legal preparations for the future.
It is important to understand that differences in terminology exist between states. In some states, guardianship gives a person control over where the ward (the incapacitated individual) lives, what health care they receive and how their day-to-day needs are met. Conservatorship, on the other hand, gives a person the ability to handle a ward’s financial decisions, such as paying bills, managing investments and budgeting. Sometimes these terms may be used interchangeably.
To act as someone’s legal guardian or conservator, the individual petitioning for guardianship must go to court to have the ward declared incompetent based on expert findings. If the ward is ruled incompetent and the petitioner is a suitable candidate to serve as a guardian, then the court transfers the responsibility for managing finances, living arrangements, medical decisions or any combination of these tasks to the petitioner.
This process often takes a good deal of time and money. If family members disagree about the need for guardianship or who should act as a guardian, the process can be especially painful, prolonged and costly.
What Is a Court-Appointed Guardian?
A guardian (or conservator) is a person who has court-ordered authority to handle an incapacitated person’s affairs. Guardians have a fiduciary duty to act in the best interests of the person they are appointed to serve. Sadly, it strips the ward of many rights, but it might be the only way to gain the legal authority to make crucial decisions on their behalf.
Who Can Be a Legal Guardian?
At a hearing, the court decides if the person seeking guardianship is well suited for this role. A petitioner’s criminal background, credit history and potential conflicts of interest are typically factored into this decision.
In cases where more than one person is seeking responsibility for a ward’s needs, the court will determine who is best qualified for the position. Sometimes one person is appointed to handle the ward’s personal and medical decisions (often referred to as guardianship of the person), and another is granted responsibility for managing the ward’s financial matters (guardianship of the property). The ward’s preferences and any legal documents that were prepared prior to their incapacitation (e.g., non-durable POA, will or advance directive) are factored into this decision when possible.
Many states give preference to the ward’s spouse, adult children or other family members, since they are often most familiar with the person’s unique needs and abilities. If a relative or friend is not willing or qualified to serve in this role, then a professional guardian or public guardian may be appointed.
When Is a Guardian Appointed?
A guardian or conservator can only be appointed if a court hears evidence that the person lacks mental capacity in some or all areas of their life and determines they can no longer make informed decisions for themselves. Allegedly incapacitated people have the right to an attorney and the right to object to the appointment of their guardian or conservator.
In rare cases, emergency guardianship may be granted right away if an elder’s health and/or finances are in jeopardy. However, guardianship is a very serious intervention and should only be considered a last resort.
What Does a Guardian Do?
Whenever possible, the guardian or conservator must seek the input of the ward and must only act in areas authorized by the court. Guardians can be given limited or broad authority, depending on what a court rules is needed after a thorough investigation. Sometimes the court delegates responsibilities to several parties. For example, a bank trustee might serve as a corporate guardian to oversee financial decisions while a family member handles personal decisions like living arrangements. Generally, the court requires reports and financial accounting at regular intervals or whenever important decisions are made. Prior court approval is even required for some larger decisions.
Do Guardians Receive Compensation?
All court-appointed guardians are entitled to reasonable compensation for their services. When a so-called family guardian (a spouse, family member or friend) is appointed, they typically do not charge the ward for their services. In cases where a private guardian is appointed, these individuals are paid directly from the ward’s estate if they can afford it. In most cases, the compensation amount must be approved by the court, and the guardian must carefully account for all their services, the time these tasks require and any associated out-of-pocket costs. Public guardians are appointed to wards who do not have friends or family to fill the role or the resources to hire a professional guardian. They are funded by public money, such as government funds and charitable contributions.
Written by: Marlo Sollitto
Originally Published on Agingcare.com at: CLICK HERE.
- National Academy of Elder Law Attorneys: CLICK HERE.
- Idaho Guardian and Fiduciary Association: CLICK HERE.