Unfortunately, many older adults experience periods toward the end of life when they cannot make decisions for themselves due to dementia, strokes, accidents, general cognitive decline, or other serious medical conditions.

If the person who is unable to make decisions previously made an estate plan including a durable power of attorney and healthcare proxy, he or she has already appointed someone to make financial and medical decisions on their behalf.

But what if your friend or family member has only one of these documents? Or neither? Or there are important decisions not covered in those documents? That’s when an adult guardianship might be needed. It usually requires a lawyer and always requires Court intervention. However, it could help solve a big problem regarding who makes major decisions when your friend or family member can’t do so alone.

What Is Adult Guardianship?

If someone can’t make critical decisions and/or is unable to manage their activities of daily living, a Court can appoint a legal guardian to act on that person’s behalf.

Someone appointed to make decisions about the person’s medical care and other aspects of their personal life is called a guardian of the personal needs. Someone appointed to manage finances is usually called a guardian of the property management. Often, one person serves as the guardian of both the estate and the person.

The Pros and Cons of Adult Guardianship

There are advantages and disadvantages to establishing a guardian for an incapacitated person. The following pros and cons demonstrate how adult guardianship can be positive or negative to help you see all sides of the process before making a decision.

Pros

Allows family members know that someone with full cognitive abilities is making decisions.
Can help prevent elder financial abuse.
Gives clear legal authority to deal with third parties.
Provides a process to have a Court approve major decisions.

Cons

Costly to set up, requiring a lawyer, legal papers, and a Court hearing.
Time-consuming, including extensive ongoing paperwork.
Can be emotionally difficult if family members disagree about who should be the guardian.
The incapacitated person may be resistant to a guardian or feel hurt by family members’ decision to seek guardianship.

When Is Adult Guardianship A Good Idea For an Elderly Family Member?

Adult guardianships are not the right thing for all families, but they can be valuable and appropriate under certain circumstances. For an adult guardianship to make sense, two things must be true. First, the person must be physically or mentally incapable of making important decisions for themself. The other circumstance is that they do not already have an estate plan in place that cover decisions about personal and financial matters.

If they have not prepared a durable power of attorney for finances, a guardian of the property management can help ensure the person’s finances and assets are managed responsibly.

If they do not have a healthcare proxy or living will, they might need a guardian of the personal needs to make healthcare decisions. Even if the person has a healthcare proxy, they might still need a guardian to decide on matters not covered in the proxy.

How Do I Set Up Adult Guardianship For a Family Member?

An adult guardianship requires the filing of formal legal papers, followed by a Court hearing in front of a judge. Legal papers have to clearly spell out the person’s physical and mental condition and how this leads to an inability to manage his or her activities of daily living. Family members must be notified and given a chance to file their own legal papers, either supporting or contesting the proposed guardianship or the proposed guardian. And the alleged incapacitated person in question, too, must also be given a chance to contest the guardianship.

As you can see, the process is quite involved, and for good reason. The strict legal process surrounding adult guardianship is designed to help prevent exploitation and financial abuse, which is especially important for seniors. The process of filing for guardianship can be daunting, especially if you’re concurrently handling an elderly loved one’s physical or mental health challenges. To help you navigate the legal process and ensure you don’t miss any steps, you may seek the help of a lawyer, ideally one with adult guardianship experience.

How Does a Court Determine That Someone Can’t Manage Their Activities of Daily Living?

It’s not always easy to determine whether someone is capable of making decisions and managing their activities of daily living. In some cases, it’s obvious that a guardian is necessary — for example, for a person who’s unconscious or semiconscious, or who has dementia. But many other people have physical or mental limitations that diminish but don’t totally erase their decision-making capacity. In that case, a Court has to weigh opinions and options.

If the person can communicate, a Court may want to speak directly to them or have a court evaluator do so, in addition to reading reports from doctors and family members. The Court or evaluator will ask whether they understand the court proceedings, whether they want a guardian, and whether they feel they can make their own decisions.

If, after a preliminary investigation, it’s still not clear whether they need a guardian or who that guardian should be, the Court may appoint a lawyer to represent the person in the proceedings.

Courts also can replace the guardian with someone else if the guardian repeatedly makes poor decisions or neglects his or her duties. A family member or any other interested person could request a change by filing papers with the Court detailing the reasons the guardian should be replaced.

Who Should Act As a Guardian and What Are The Duties?

When seeking a guardianship of the personal needs, It’s usually best for someone who lives with or close to the person to act as guardian. Often, this ends up being an adult child or sibling, but it can also be a court-appointed representative, especially when there are concerns about the ethics of the family members. For a guardian of the property management, it should be someone who is familiar with handling finances, particularly if those finances are substantial or complicated.

In either case, it has to be someone who can give the time necessary to manage their affairs. If no family member lives near the person, or if no family member has enough financial savvy, a Court might appoint a professional guardian — either a nonprofit organization or a private, paid guardian.

You might feel you’re the best person to be the guardian, but another family member might disagree. Before you file any court papers, discuss with your family who should be the guardian. Hashing out this question ahead of time can do a lot to reduce stress and make for a smoother and less expensive legal process.

What Responsibilities Does a Guardian Have?

Being a guardian can mean different things in different cases. When it comes to seniors, the guardian will typically have to make decisions about the person’s routine care. The guardian may also have to make significant personal or financial decisions, such as how best to spend the person’s assets or where they’ll live. The guardian also has to handle administrative matters — for example, dealing with doctors, Medicare, insurance, or a long-term care agency or facility. This includes applying for whatever benefits, pensions, medical coverage, and the like she might be eligible for.

The guardian also has to keep careful records of decisions and expenditures made on the person’s behalf. This information has to be regularly reported to the Court: how often and in how much detail depends on the Court’s orders in one’s particular case.

A Court might also require the guardian to come back to court regularly to report on what’s happened since the last court appearance. Or they might require the guardian to come back into court before making certain major decisions, such as selling her home, or moving her into a nursing facility or out of the state. In all cases, it’s important to completely comply with all legal requirements and stay on top of reporting duties. Remember, the processes surrounding adult guardianships help protect seniors, and keeps the process transparent for all.

Call or email The Donaldson Law Firm to schedule a free consultation to discuss adult guardianship.

Blog

Guide To Adult Guardianship