If your loved one has diminished capabilities and is unable to manage his or her affairs, it may be time to talk with a legal advisor about naming a guardian to make decisions for this person. In a guardianship proceeding, a court decides whether a person with diminished mental capacity should retain his rights to make decisions about his own affairs.
Often a concerned family member or friend consults an attorney, who first gives guidance on obtaining medical evidence. This can involve examinations by a physician, psychologist, or psychiatrist. Once the evidence is gathered, a petition that states why guardianship is necessary is filed with the court. Then a hearing is held; usually the incapacitated person will have an attorney. “The court will ultimately decide if [the person] needs a guardian, full or limited, complete or partial,” says Hammond. “Guardianship will typically last as long as the need arises. By far, most of them last for the remainder of a person’s life.”
Hammond say fully two-thirds of guardianships in America are family guardianships. If relatives are far away or if the family dynamics are difficult, a judge will appoint a local professional guardian. There are no national guidelines for guardians, and most states do not offer guidance for this important role. However, the National Guardianship Association has developed standards of practice (www.guardianship.org, click on Standards of Practice). Guardian roles will depend on the court order that appoints the guardian and the individual state laws. According to the National Guardianship Association, a guardian may have the following responsibilities:
- Determine and monitor residence
- Consent to and monitor medical treatment
- Consent to and monitor non-medical services such as education and counseling
- Consent to release of confidential information
- Make end-of-life decisions
- Act as representative payee
- Maximize independence in the least restrictive manner possible
- Report to the court about the guardianship status at least annually
- Marshall and protect assets
- Obtain appraisals of property
- Protect property and assets from loss
- Receive income for the estate
- Make appropriate disbursements
- Obtain court approval prior to selling any asset
- Report to the court on estate status
Conservatorship is often interchangeable with guardianship. A conservator of the estate oversees financial concerns, while a conservator of the person manages health issues and living arrangements.
Guardianships and conservatorships are more expensive than routine planning because of the necessity of court involvement-in contested cases families can spend thousands of dollars on this expense. Guardianship proceedings are also inherently adversarial, and a contested case can be difficult for a family to overcome. As a last resort, guardianship may be the only way to ensure that the personal and financial affairs of a loved one are protected.
Hammond recommends legal planning for seniors that includes a DPOA, a will or living trust, and a health care directive while a person is still fully lucid.
Update: January 2018