With her children's consent, Mrs. X's lawyer was appointed
as legal guardian to manage her financial and legal affairs
and oversee her health care decisions.
Adults take for granted the right to make their own decisions
about how they choose to live their lives. Many seniors
accustomed to many decades of independent problem solving
guard that right with zeal. Yet illness or disability can
change the course of lives that once were self-directed.
If an adult becomes incapacitated to the point where they
can no longer make responsible decisions, legal guardianship
may be a solution.
Guardianship is the legal tool of last resort for decision-making
and management of your affairs. A guardian is appointed
by the court to make decisions and manage affairs for someone
(known as the ward) who is proven to be incapacitated. It
is a protective legal relationship similar to a power of
attorney except that it is a judge - not you - who decides
who that person will be.
The need for a guardian must be supported by medical evaluation
to prove incapacity.
And what is incapacity? If a person can no longer meet
the basic needs for nutrition, medical care, shelter, hygiene,
safety, or management of their assets, they may require
guardianship. Conditions such as Alzheimer's or mental illness
can disable a person to the point that they can no longer
perform the activities required to take care of their needs.
A person needs a guardian if
- They cannot manage their affairs because of incapacity.
- They have not established other voluntary arrangements
for decision making (such as a Durable Power of Attorney)
- They may be in harm's way if no legally authorized decision
maker is appointed
There are advantages and disadvantages to guardianship,
which is a well-intended protective arrangement. While guardianship
protects the ward and their property through legal means,
it also intrudes on their basic liberties. Their right to
made decisions about themselves and their affairs is taken
over by another. Guardianship proceedings can be emotionally
trying to the ward and their family. For guardianship to
work, there must be a balance between a guardian's powers
and restrictions that safeguard the ward's best interests
and assets. While a guardian is given powers over care,
custody and control of the ward, courts must closely monitor
how a guardian handles quality-of-life decisions.
In choosing a guardian, the general rule of order is spouse,
children, grandchildren or other close relative, friend.
If there is no friend or relative available to take on the
responsibilities, the court may appoint a lawyer, community
agency, or bank. Any appointment must serve the best interests
of the ward.
Most long-term life planning is aimed at avoiding the need
for court- appointed guardianship. If you have planned ahead
and put in place a Durable Power of Attorney, living will,
and health care proxy, you already have made your own appointments
for managing your personal, medical, and financial affairs.
With planning and consideration now, you can avoid the need
for a guardian in the future.
RESOURCES
- Senior Citizen Law Project (1-800-889-2047). Provides
some free legal counseling and referrals to seniors who
qualify.
- Senior Help-Line (1-800-642-5119)
- American Bar Association Legal Guide for Older Americans
(Random House, 1998)
- The Elder Law Handbook (by Peter Strauss and Nancy Lederman,
Facts on File, 1996)
