What is a Guardianship?
By: Constantina Koulosousas, Esq.
A Guardianship is an involuntary proceeding by which the Court determines whether an individual is “incapacitated” – or unfit and unable to manage her personal, legal, financial and medical affairs. Upon a finding of incapacity, the Court will appoint someone to act on behalf of the incapacitated individual as her “Guardian”.
Who needs a Guardianship?
Developmentally Disabled or Impaired Adult Children
A Guardianship is appropriate for an adult child who has developmental or other disabilities and is unable, due to the disability or impairment, to make independent decisions regarding her personal, legal, financial and medical affairs. At age 18, all individuals, even those with developmental disabilities, reach the age of majority in the eyes of the law. At the age of majority, parents are no longer able to make decisions on behalf of their children and may no longer be entitled to receive health information or participate in treatment options. These adult children are in need of a Guardianship.
A Guardianship is appropriate for an adult who has become mentally impaired due to an illness, accident, medical event, such as a coma, or the natural aging process. There are many possible underlying scenarios that can result in incapacity. For example, an elderly adult with dementia or another neurological condition that impairs her memory and cognition; a Traumatic Brain Injury that results in impaired decision making and comprehension. If an individual’s decision-making abilities and cognition are impaired to a degree that she can no longer manage her own affairs, a Guardianship may be appropriate.
How can you protect your loved one and stay actively involved in her affairs?
Power of Attorney / Healthcare Proxy
The simple solution is for the individual to execute a Power of Attorney and Healthcare Proxy (“POA”) appointing a trusted person as Agent. The individual must have a basic level of legal “capacity”; in other words, she must be able to understand that she is appointing someone to make decisions and handle affairs on her behalf. The POA is drafted by an attorney and requires certain signing formalities to be met. We can guide you as to the various types of POAs and assist in drafting and executing the necessary documents. A POA is inexpensive, private, and relatively easy to accomplish.
If an individual does not have legal capacity to sign a POA, or if for any reason the family feels that the POA will not provide enough protection (i.e., because it can be revoked at any time), the family may initiate a Guardianship. An individual cannot consent to a Guardianship. A Guardianship can even be established over the opposition of the “alleged incapacitated person”, if prior arrangements, like a POA, have not been made. Similarly, even if a POA is in place for an alleged incapacitated person, but the Agent neglects, refuses or simply cannot act on the individual’s behalf (and the individual does not currently have the capacity to appoint a Successor Agent), a Guardianship may be initiated.
A Guardianship can be established for the “Person” (medical, personal and legal affairs), the “Estate” (financial affairs), or both. It requires the filing of a Petition with the Court. The Petition must comply with certain legal requirements and must be supported by two independent doctors’ reports. The Court will appoint legal counsel (“Counsel”) for the alleged incapacitated person. Counsel has a duty to act as an advocate for the wishes of the client (as long as those wishes are not patently absurd and do not pose an undue risk of harm), rather than advocating for what Counsel may believe is in the client’s best interests. If, however, a party feels that the position advocated by the alleged incapacitated person is contrary to her best interests, any party may ask that the Court appoint a Guardian ad Litem, or a separate attorney who must make an investigation solely as to the best interests of the alleged incapacitated person and provide recommendations and findings to the Court.
A Guardianship can be tailored to fit the needs of the individual. For example, a Limited Guardianship can ensure that an individual retains certain rights, like the right to vote, drive, marry, and handle certain aspects of her affairs independently. A Plenary Guardianship, on the other hand, is much more restrictive and does not provide for such “carve-outs”.
What are the downsides to a Guardianship?
A Guardianship can be costly. A Guardianship can be intrusive and expose a person’s private affairs to the Court system. A Guardianship can be contested and result in a long and acrimonious court proceeding. Finally, the ultimate decision as to the appropriate guardian rests with the Judge, which could result in someone else, or even an independent person or agency, appointed as your loved one’s guardian.
A Guardianship should be viewed as a solution of last resort, as it can be very restrictive. A Guardianship essentially eliminates an individual’s fundamental right of self-determination and subjects the individual’s affairs (and the Guardian’s actions) to continued court oversight and involvement. For example, the Guardian must file annual reports of well-being and annual accountings with the Court. Additionally, certain financial disbursements must be approved by the Court in advance and modifications to the terms of the Guardianship can only be made by Court Order.
Deciding whether a Guardianship Petition is right for your family can be complex and daunting and should be discussed with a trusted Elder Lawyer. A person applying to be appointed as a guardian for an alleged incapacitated individual should consider engaging an Elder Lawyer to file a Guardianship Petition and represent his interests.
If you are considering a guardianship for your loved one, or if you oppose or have questions about a pending guardianship that someone else has initiated for your loved one, contact us. We can help guide your family with care, competence, experience and skill.