How Does Guardianship Work?

Please Share!
If you haven't had any experience with guardianship for adults with dementia, it's likely you don't understand just how complex it is. You are not alone.

For family members of the estimated 6.5 million dementia patients in the U.S., it is crucial to understand whether guardianship may be an option for their loved one. A recent article from Next Avenue titled “Thinking of Becoming a Guardian?” explains how the guardianship process works and what factors go into the decision-making process.

A guardian is placed is the position of being responsible for someone else, i.e. the “ward”. State courts will normally appoint a guardian only upon a finding that the proposed ward is incapacitated or unable to make safe and reasonable decisions for themselves. It is a serious appointment, as those people who are placed under guardianship often lose their independence in making financial, legal and health care decisions.

In assessing the proposed ward, experts such as a geriatrician or psychiatrist may be called upon to evaluate the person’s functional behavior, cognitive function, disabling conditions and ability to meet their essential needs. Two tasks that are often evaluated when considering guardianship are a person’s ability to manage personal finances and to take medications as prescribed.

There are significant benefits to guardianship for someone who is not able to care for themselves. It ideally creates a safety net for a person who cannot make informed decisions for themselves. This, of course, assumes that the guardian is honest and accountable, which is not always the case. The inconsistencies plaguing the guardianship system include minimum standards for guardians, lack of regular independent reviews of the need for guardianship and lack of educational requirements for guardians.

Once guardianship is assigned, there is a tendency for the person to become lost when no follow-up is done. The very same person who lacks capacity to care for themselves is not going to be able to advocate for themselves, contact an attorney or access funds for court proceedings. There is also a tendency to assign full guardianship for a person, rather than less restrictive alternatives.

There are alternatives to full guardianships, but they require a level of pre-planning and discussion that is most often neglected. According to an article in the Journal of the American Geriatrics Society, more than 40% of Americans have not discussed their wishes for end-of-life care with their loved ones. This is a conversation that families should have at the first sign of memory loss or when preparing for retirement. An Advance Directive directing caregivers regarding wishes for end-of-life care is a vital piece of planning. Another important document, although not legally binding, is a “Value History,” where you share your values and beliefs as they may impact care choices. Finally, an individual should be designated as Power of Attorney and a list two or even three back-up candidates included. This person will be responsible for financial, legal and personal matters, avoiding the need for guardianship.

Appointing a family member or friend as a guardian is often the ideal solution, but not always. There are instances when the best person to be a guardian is not a family member, but a court-appointed outsider. This relieves the family of being the ones who need to inform a person suffering from dementia with the news of having to move into a nursing home facility or sifting through financial records. The family can focus on being supportive and loving, while the guardian deals with the sometimes harsh realities of the person’s life.

Speak with your estate planning attorney to learn about how guardianship works, and whether it may be the right move for your family.

If you or a loved one needs assistance with elder lawprobate or estate planning issues, do not hesitate to BOOK A CALL using our calendar. We are here to help.

Reference: Next Avenue (Dec. 23, 2022) “Thinking of Becoming a Guardian?”