An Overview of Guardianship

Some basic facts about guardianship, assessment, and a guardian’s rights and responsibilities.

Guardianship is a relationship between a competent adult, agency, or institution and a ward. The ward is a person over the age of 18 with a disability that causes incompetency. Guardianship is meant to ensure the well being of the ward by allowing a competent individual to make decisions for the ward who is not capable of doing so.

Individuals who fit the legal definition of mental incapacity may suffer from:

  • A severe mental illness
  • An acquired brain injury
  • An intellectual disability
  • Conditions associated with old age
  • Conditions related to a stroke
  • Chronic intoxication
  • Dementia

Yet these conditions are not sufficient to classify the person as mentally incapacitated. Instead this judgment is made with regard to the person’s ability to make an informed decision, and takes into consideration any harm or risk that the person may experience due to an inability to provide for or manage his or her personal affairs.

Avoiding Guardianship

Because guardianship is a legal relationship, the court recognizes the guardian’s right to make certain decisions for the ward in his or her best interest. By recognizing these rights as the guardian’s, the court takes them away from the ward. For this reason, guardianship is only recommended when other alternatives have proven to be ineffective. Before considering guardianship, look into less restrictive ways to help your loved one make decisions, including conservatorships and power of attorney contracts.

If your loved one is capable of making informed decisions, he or she can avoid a possible guardianship situation by establishing:

  • A living trust in which the trustee can manage assets and no guardian of the estate is needed
  • A durable health care power of attorney
  • A durable power of attorney in which the designated can manage assets

Note: “Regular” or “non-durable” powers of attorney or health care powers of attorney don’t rule out the potential of future guardianship, so make sure that any documents your loved one signs are “durable.”

Assessing Your Loved One

By asking yourself the following four questions, you can informally assess your loved one’s decisional capacity:

  1. Does your loved one understand the circumstances surrounding a decision, and why a decision is called for?
  2. Does your loved one understand the options available in making the decision?
  3. Does your loved one understand the consequences of choosing certain options?
  4. If your loved one understands the above, can he or she identify the appropriate person(s) to inform about the decision?

For a slightly more formal analysis of your loved one’s mental capacity, review the official definition of mental incapacity given by the Guardianship and Administration Act of 1993:

The inability of a person to look after his or her own health, safety, or welfare or to manage his or her own affairs, as a result of (a) any damage to, or illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or (b) any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever.

Because many states base their definition of mental incapacity on this law, it works as an informal definition, but you should check with an attorney for the specific rules governing guardianship in loved one’s state.

Responsibilities

If the court finds a ward to be mentally incapacitated, a guardian is appointed to what is known as an “involuntary guardianship.” Guardians also can be appointed for individuals who voluntarily elect to have another individual manage their affairs, which is known as “voluntary guardianship.” Regardless, guardianships can be quite restrictive due to annual accountings, bonds, a large amount of court involvement, and regulations on how the ward’s money can be spent and invested. For this reason, all alternates to guardianship should first be considered—except in cases where the ward has no trusted family members or friends. Because guardianship is so restrictive, the process offers these individuals a more secure way of appointing someone to help make their decisions.

Guardianship can be appointed for only the individual or for the individual and the individual’s estate. The guardian can manage the entire estate (plenary guardianship) or specific responsibilities of the ward (limited guardianship). Ultimately, the guardian’s role depends on the ward’s level of incapacity and the specific laws that govern guardianship activities and proceedings in his or her state.

Generally, a guardian makes decisions related to the ward’s medical treatment, living situation, property, and/or income. A guardian’s rights and responsibilities may include:

  • Accessing the ward’s confidential records and/or papers
  • Admitting the ward to a hospital or institution
  • Arranging and consenting to travel plans
  • Making living arrangements for the ward
  • Making decisions regarding the ward’s education\Gifting the ward’s money or property to others
  • Initiating, defending, or settling lawsuits
  • Lending or borrowing money
  • Making a will for the ward
  • Managing or possessing the ward’s property or income
  • Paying or collecting debts
  • Refusing or consenting to medical procedures

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