Taking responsibility for and guardianship of another person who is the age of consent generally requires the inability of a person to make legally binding decisions. The term given when someone is not able to make legal decisions for himself or herself is capacity. Guardianship is given through a legal process and must be revoked by the same legal means. Following are common questions about guardianship of elderly adults. This month, Cambridge Health will share information that is a common concern amongst our client families. This information should be used as a precursor to discussing your personal needs with a qualified legal professional.
Guardianship
Guardianship is a legal relationship established following a court hearing, when a guardian is appointed by a judge to make decisions for another who lacks capacity. The authority granted to a guardian may cover virtually all aspects of the ward’s life, or it may pertain only to certain aspects. The guardian owes the incapacitated person a special duty of care and accountability.
Who needs a guardian?
A guardian may be appointed when a person lacks capacity to make personal and/or property decisions, and may be at risk of harm without the protection of a guardian.
Capacity
A person’s capacity is the ability to understand relevant information and make decisions to meet one’s essential daily needs. Adults are presumed by law to have capacity unless a judge rules otherwise. Adults with capacity have the right to make decisions affecting their person — living arrangements, health care, marriage and so on — or
property — spending, savings, and gifts of property during life or after death. States have different tests for deciding whether someone has capacity to make decisions.
Some are based on whether a person has a particular condition (such as a mental illness, mental retardation or dementia). Some are based on whether a person is able to make or communicate decisions. Others are based on the person’s ability to do certain things, such as manage money or make health care decisions. And some combine all of these factors.
How is the decision made that a person needs a guardian?
The process varies among the states, but in general it involves these steps:
- Someone petitions the appropriate court to declare the person in question incapacitated and to appoint a guardian.
- The alleged incapacitated person and certain family members are notified about the petition and hearing.
- The person is examined to assess capacity, usually by a doctor, psychologist or social service provider, or some combination of them. In some states, a "guardian ad litem" or "court visitor" also meets with the alleged incapacitated person, acting as the "eyes and ears of the court," and makes a report to the judge. A hearing is held, and the judge determines whether a guardian is necessary.
Privacy
Guardianship cases are handled by different courts in different jurisdictions. Many courts do not process or do not keep adult guardianship records. However, one estimate by the Associated Press in 1987 was that there were approximately 400,000 adults under guardianship in the United States, a number that has likely increased and is likely to continue to increase as the population ages.
What happens if an individual needs a guardian, but there is no family member or friend who is willing to or capable of acting as the guardian?
Private guardians or guardianship agencies may be available for persons who can pay for their services. In some states or localities, public guardianship programs exist to serve low-income incapacitated persons. In jurisdictions without a public guardianship program, a government agency or official may serve as the guardian of last resort for poor persons.
Terminating Guardianship
It is possible to terminate a guardianship and restore an incapacitated person’s rights if he or she regains capacity. A court hearing is required. Restoration is rare, as it is often difficult for the incapacitated person to retain a lawyer and/or prove capacity.
Disadvantages to Guardianship
Guardianship may take away from an incapacitated person important legal rights (such as the right to vote, to marry, and to decide where to live, make gifts or make health care decisions).
Guardianship can be expensive and emotionally difficult for everyone involved. And although guardians must report to the court in most states, sometimes no one makes sure that the guardian is acting appropriately on behalf of the incapacitated person. There are alternatives to guardianship in the form of less restrictive legal measures and social programs may serve to delay or even prevent guardianship.
These may allow someone to make decisions or take actions for an incapacitated person without having a judge declare the person incapacitated and appoint a guardian. Some of the alternatives must be planned by a person before he or she loses capacity, while others may be used to help someone who lacks some or all capacity and did not plan for that possibility.
Alternatives to Guardianship
- Durable Power of Attorney (DPA)
- Trust
- Joint Ownership
- Voluntary Guardianship
- Over Property
- Daily Money Management (DMM)
- Representative Payee
- Living Will
- Health Care Power of Attorney
- Health Care Advance Directive
- Health Care Surrogate or Family Consent Laws
Overview of Alternatives
- A durable power of attorney allows a capable person to grant another person authority to act for him or her if incapacity occurs. DPAs usually affect property decision-making, but may also relate to health care.
- A trust enables a person ("grantor") to transfer ownership of property into a trust that is managed by a trustee for the benefit of the grantor. Trusts allow a trustee to manage property in the event of the grantor’s later incapacity.
- Joint ownership of land or bank accounts may allow a co-owner to manage an incapacitated co-owner’s property. Allowed by only a few states, this enables a person who is worried about losing capacity to plan for property management with court oversight.
- Daily money management services help people with their financial affairs, including check depositing and writing, checkbook balancing, bill paying, insurance claim preparation, tax preparation and counseling, and public benefit applications and counseling. DMM is voluntary; a person must be capable of asking for or accepting services.
- A representative payee is appointed by a government agency to receive, manage and spend government benefits for a beneficiary. A beneficiary may request a representative payee, but usually the agency requires one when a beneficiary is incapable of managing benefits. The representative payee’s authority is limited to the government funds for which he or she is the payee.
- A living will gives directions about treatment desired if a person is terminally ill and near death, or in a "persistent vegetative state," and cannot make or communicate health care decisions. Generally, laws limit the directions to those about the use, withdrawal or withholding of lifesustaining or life-prolonging procedures.
- A health care power of attorney enables a person to name an agent or proxy to make
health care decisions if he or she becomes unable to do so. It may address any type of health care decision, and may include guidance to the agent about the type and extent of health care desired.
- A health care advance directive combines the health care power of attorney and living will into one document.
- Health care surrogate or family consent laws provide legal authority for certain groups of persons (e.g., spouses, children or parents) to make health care decisions for an adult who cannot make or communicate such decisions due to disability, illness or injury, and who has not authorized someone else to do so.
The information for Facts About Law and the Elderly was compiled with the help of the American Bar Association Commission on Law and the Elderly and its staff. Excerpts are reprinted by CH with permission of the ABA Division for Media Relations and Public Affairs.
If you have concerns about elder law including guardianship and alternatives to guardianship, simply call Cambridge Health at 404-935-5900. Cambridge Care Managers can help you find the information or expert advice you need to make informed decisions.
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