According to the National Guardianship Association (NGA), guardianship is intended to protect and support the physical and mental well-being of individuals whose cognitive limitations prevent them from making their own sound decisions.
What is Guardianship? Guardianship is a legal relationship between a competent adult and an individual whose limitations or disability has led to incompetency. The disability may be due to many sources such as, but not limited to: mental illness, developmental disability, accident, closed head injury or dementia, such as Alzheimer's Disease.
In guardianship cases, the rights of the individual are taken away. The guardian is given the legal right to make decisions on behalf of the individual with the disability. Because some incapacitated individuals are able to make responsible decisions in some areas of their lives, the court may limit the guardianship to only those areas in which the incapacitated person is unable to make reasonable and responsible decisions. On the other hand, in some cases, the guardian is given full authority in the best interest of the individual. In essence, the individual is no longer allowed to make any decisions related to their medical care, housing or even financial matters.
Any individual over the age of 18 who has not been convicted of a felony and has not been judged disabled can become a guardian. In addition, the Court can appoint a public or private agency or a non-related professional guardian if family, friends or neighbors are not willing or able to accept this responsibility.
Each state has specific laws and procedures regulating guardianship proceedings and guardian activities. Each state also has court fees and other specific fees related to filing the petition. In addition, if you hire an attorney, you will be responsible for those fees as well. The laws of the state in which the individual resides will determine appropriate reasons to deem an individual incompetent. Your local court will be able to direct you to the division that oversees adult guardianship cases. Guardianship cases are usually seen in probate court.
What Determines Competency? Competency is directly related to an individual's ability to make "informed and educated decisions" and/or the ability to physically provide for themselves and manage their affairs without any risk of harm. The individual must clearly demonstrate the inability to make or communicate responsible decisions concerning their personal and financial matters. A developmental disability or mental illness is not, by itself, ample cause to deem someone incompetent. In addition, a person cannot be declared incompetent simply because she makes foolish or irresponsible decisions but only if the person is shown to lack the capacity to make sound decisions.
In general, the primary test for determining the need for guardianship focuses on the individual's ability to make reasonable decisions and to communicate these decisions. Areas of concern are usually related to medical care, living conditions, caring for dependents and managing finances. The NGA proposes asking the following questions to determine if there is a need for guardianship:
- Does the individual understand it is necessary to make a decision?
- Does the individual understand available options when making this decision?
- Does the individual understand the potential consequences of decisions?
- Can the individual follow through or direct the appropriate persons to execute the decision?
If the answer to one or more of these questions is "no", the individual may be at risk and in need of assistance.
How are Guardians Appointed? Only the court can determine incompetency and appoint a guardian to an individual. A guardian will get appointed once a petition (the official request for the appointment of a guardian) is filed with the court and a court hearing is held. During the hearing, evidence is presented regarding the individual's:
- Nature and type of disability.
- How the disability impacts the individual's ability to make appropriate decisions
- Mental and physical condition, educational status, adaptive behaviors and social skills based upon an evaluation completed by a guardian ad lietum (an individual who is sent by the court to complete this evaluation)
- Need for a guardian
- Needs for suitable housing and care needs
In emergency cases, a temporary guardian may be quickly appointed. In general, most guardianship proceedings can take up to two or three months.
Guardianships can be revoked, modified or terminated once the individual's ability to make and communicate decisions without risk of harm is demonstrated to the court. Procedures to have a guardianship modified in any form vary by each state.
Alternatives to Guardianship - Guardianship imposes a serious removal of rights, liberty and dignity and is a highly intrusive form of advocacy. Therefore, the law imposes guardianship only when other less restrictive alternatives and forms of protection have been exhausted. However, these alternatives must usually be written and notarized prior to the incapacity of the individual. Such alternatives may include:
- Power of Attorney: a contract between two individuals where one party (the principal) gives to the other (the agent) the authority to make any number of decisions regarding medical care, housing and financial decisions on his/her behalf. The principal must be considered mentally competent in order to enter into this contract. However, once the principal becomes mentally incapacitated, the power of attorney becomes null and void.
- Durable Power of Attorney: a contract similar to the power of attorney with one exception - if the contract is made "durable," the power of attorney remains in effect if the principal becomes mentally incapacitated.
- Advance Directive: a written statement that is completed in advance of serious illness. It describes how you would like your medical decisions to be made and it allows you to appoint an individual who can make medical decisions for you if you become incapacitated. In essence, it allows you to make medical decisions about your future medical treatment. The two most common forms of advance directives are a living will and a durable power of attorney for health care. You must be considered mentally competent when writing these documents.
- Living Will: a document stating the kind of medical care you want or do not want. It allows you to make medical decisions about your future medical treatment. Although it is similar to an advance directive, it does not allow you to appoint another person to make decisions for you. In addition, living wills are not considered legal documents in all states, so check with an attorney in your area.
- Representative Payee: a person who is appointed to manage Social Security, Veterans' Administration, Railroad Retirement, welfare assistance and other state or federal benefits or entitlement program payments on behalf of an individual.
- Conservatorship: a person appointed by the court to handle only an individual's financial affairs. In some states this proceeding can be voluntary where the person needing assistance with finances petitions probate court to appoint a conservator to manage his/her financial affairs. However, the court must determine that the individual is unable to manage his or her own financial affairs but nevertheless has the capacity to make the decision to have a conservator appointed.
- Revocable Trust: a revocable or "living trust" can be established to hold an individual's assets with another individual serving as the trustee. Alternatively, the elder or disabled person can be a co-trustee of the trust with their caregiver, who will manage these duties should the older person become incapacitated.
For state specific information regarding guardianship, petition forms, procedures and fees, please contact your local probate court.