What Is a Guardianship?

Those caring for aging parents know that, at some point, their mother or father may not be able to make sound or safe decisions about important issues like health, finances or property. They may even have fallen prey to some type of fraud or poor financial advice from others.

In other circumstances, an adult child may be unable to care for himself or herself because of illness or because he or she is judged to be incompetent. 

If your aging loved one is unable to make sound financial decisions for themselves, it may be wise to consider guardianship. Also known as conservatorship, guardianship is a legal process in which someone else is given authority to make decisions on behalf of a person.

Guardianship can be a useful way to protect someone unable to care for themselves, but it also has some drawbacks worth knowing before entering the legal process.

Who Can Be a Guardian?

Guardianship, according to the Family Law Self-Help Center, is giving someone the legal authority to make decisions for another person.

• The person appointed by the court to make decisions on behalf of someone else is known as a guardian.
• The person who is supervised by the guardian is known as the “protected person.”

A person doesn’t have to be related to the protected person to be their legal guardian. The court can appoint anyone to be a guardian, though relatives of the protected person are typically favored in cases where more than one person petitions to be the guardian.

State laws may vary, but in some states, a person may not be able to be appointed as a guardian if they’re a minor, have been convicted of a felony or have recently filed for bankruptcy.

The Goal of a Guardianship

According to the National Guardianship Association, establishing a guardianship takes away from the individual certain rights, and it should be considered only after other options have been exhausted of are not legally available.

In many cases, especially in cases of the elderly, a court-approved guardianship remains in place until the protected person dies. However, the courts also require an annual review and assessment to see if the guardianship needs to remain in place or be terminated, or to allow the court to enact restoration of some of the incapacitated person’s rights, usually for adult children.

What Makes an Effective Guardianship?

An effective guardianship, the NGA says, should be able to restore the rights of the individual who, for whatever reason, has had some of them removed.

The person chosen to be the guardian must be trusted to understand and enact the wishes of the protected person whenever he or she makes a decision about financial issues, medical treatments, end-of life decisions, residency and more.

Courts may be able to limit a guardian’s authority. “The guiding principle in all guardianship is that of least intrusive measures to assure as much autonomy as possible.

The guardian’s authority is defined by the court and the guardian may not operate outside that authority. A guardian may be a family member or friend, or a public or private entity appointed by the court,” the NGA states.

A legal and professional guardian does not replace family members, but the guardian may form “an emotional bond with the person under guardianship,” the NGA says. The legal guardian will be charged with coordinating services that the person under guardianship required, including a home caretaker, in-home health care and others.

What Rights and Responsibilities May Be Part of a Guardianship?

The courts take away only the rights that the protected person is unable to safely handle on their own. These rights vary from state to state and depend on the statutes of the person’s home state (sometimes the home county as well).

The NGA says that the following rights may be removed from a protected person:

• Determine residence
• Consent to medical treatment
• Make end-of-life decisions
• Possess a driver’s license
• Manage, buy or sell property
• Own or possess a firearm or weapon
• Contract or file lawsuits
• Marry
• Vote 

Rights of Due Process

The law allows for sufficient due process protection whenever a guardianship is created, to protect the individual when his or her rights are being considered. The AGA says that these due process protections include allowing the individual:

• Notice of all proceedings.
• Representation by legal counsel.
• Attendance at all hearings and court proceedings.
• Ability to compel, confront and cross examine all witnesses.
• Allowance to present evidence.
• Appeal to the determination of the court.
• Presentation of a clear and convincing standard of proof.
• The right to a jury trial.

Responsibilities

A guardian appointed by the courts may have some or all the following responsibilities:

• Determine and monitor residence.
• Consent to and monitor medical treatment.
• Consent and monitor non-medical services such as education and counseling.
• Consent and release of confidential information.
• Make end-of-life decisions.
• Act as representative payee.
• Maximize independence in least restrictive manner.
• Report to the court about the guardianship status at least annually.

Estate or Property Guardianship

Someone who is named guardian of an estate, as opposed to a personal guardian, has decision-making power over an estate, which the NGA defines as, “real and personal property, tangible and intangible, and includes anything that may be the subject of ownership.”

A guardian of the estate is responsible for:

• Marshaling and protecting asset
• Obtaining property appraisals
• Protecting property and assets from loss
• Receiving income for the estate
• Making appropriate disbursements from the estate
• Obtaining court approval before selling any asset
• Reporting on estate status to the court

Fiduciary Responsibilities

Whatever funds the protected person owns remain his or her property; they do not become the guardian’s property. All of the person’s funds are kept separate from the guardian’s personal funds and are accounted for separately.

“The estate guardian acts on behalf of the incapacitated person only to the extent of the person’s assets. For each person that a professional guardian serves, the guardian stands ready to give an accurate accounting of those funds to the court.

The professional guardian is an advocate and acts on behalf of the incapacitated person only to the extent of the court order,” the NGA clarifies.

How Long Does a Guardianship Last?

According to the Family Law Self-Help Center:

• A guardianship over an adult lasts until the adult regains the ability to care for themselves, or until the adult dies.
• A guardianship over a child lasts until the child turns 18 or 19, depending on when the child graduates high school and at the discretion of the court.
• The guardian or a relative can ask the court to end a guardianship at any time if they feel the guardianship is no longer needed.

Alternatives to Guardianship

There are other options for protecting an individual’s wishes and desires that don’t require establishing guardianship. The NGA lists the following:

• Representative or substitute payee
• Case/care management
• Health care surrogacy
• Trusts
• Durable powers of attorney for property
• Durable powers of attorney for health care
• Living wills
• Community advocacy systems
• Joint checking accounts
• Community agencies/services
• Supported decision-making networks

Conclusion

The details of guardianship are extensive and complicates, and they vary from state to state or even from county to county. Therefore, the NGA recommends that anyone considering this option consult with a professional elder law attorney or advocate, who will know what the laws and regulations are in your area and what may be most appropriate for your needs.