Future Care Planning
What is guardianship? Guardianship is a legal process consisting of a court-appointed relationship between a competent adult and a person over the age of eighteen whose dis-ability renders him/her unable to make an informed decision or at risk of doing harm to self or others due to an inability to manage his/her own affairs. The incapacitating disability may be caused by mental illness, developmental disability, aging or other factors. A guardian is defined as a person who has been entrusted by the Surrogate Court with the care of another person, for the person's property, or for the care of both person and property.
Who can be a guardian? A guardian can be a friend, family member, neighbor, or a professional who has been trained to carry out guardianship functions. Corporate guardianship is also an option for those who have no one to serve as guardian. Corporate guardians can be non-profit or public organizations, banks, or other officials who have been deemed able to function as guardians. It is generally preferred that the guardian reside in the same state as the ward; however, direct or adopted close relatives (e.g. adult children, spouses, nieces, nephews, aunts, uncles) are eligible to become guardians, regardless of residence. When deciding on a guardian, it is also advisable to think of who could be a stand-by or alternate guardian, in case something should render the proposed primary guardian unable to carry out the guardianship duties.
According to law, a guardian must be over eighteen, be deemed by the court as able to serve in the guardianship capacity, never convicted of a felony, not a professional providing services to the ward, and not be in debt to the ward.
How does guardianship work? In guardianship, the court gives the guardian the ability to make decisions on behalf of the ward. This takes power away from the ward. Because of this, the law allows for two types of guardianship: guardianship of the person and guardianship of the property. For both types of guardianship, there may be limitations placed on the guardian's power, depending on the mental capacity of the person involved.
Guardianship of the person entails decisions and oversight in areas such as housing, education, standard of living, consent/refusal of medical treatments, acquisition of clothing and personal possessions, access and release of confidential records, counseling/therapy services, and travel decisions. These are only some of the areas in which the guardian may exercise decision-making power to ensure the ward's safety and well-being. As stated before, the court can limit the decision-making power of the guardian. For example, the person may be deemed able to make decisions about where he/she wants to live, but not about medical or mental health treatment. The court may limit the petition of guardianship accordingly.
Guardianship of the property entails management of the ward's financial affairs. This may be voluntary or involuntary guardianship. If the person is competent most of the time and voluntarily selects someone else to oversee financial matters, this is voluntary. If the person is found unable to handle financial matters by the court, an involuntary guardianship of the property may be ordered. Guardianship of the property may be plenary or limited. Plenary guardianship means that the person needs to have a guardian manage the entire financial estate. Limited guardianship would provide decision making for only some parts of the financial estate.
What duties are required of a guardian? The appointed guardian can only assume those decision-making rights and responsibilities that have been taken away from the ward. Unless limitations have been placed on the guardianship to allow the ward to retain as much autonomy as possible, the guardian may be responsible for any of the following duties:
- care for and increase the value of the ward's assets
- determine if there is a need to take any type of action for the ward's benefit
- maintain an accurate and concise record of income and expenses
- file and maintain an inventory of assets
- file annual financial and guardianship reports petition the court as needed concerning taking actions outside guardianship functions
- make informed decisions regarding doctors, treatments, surgeries, and hospitalizations
- ensure that any needed services are provided to the ward in a timely manner
How does one apply for guardianship? Persons interested in applying for guardianship on behalf of a loved one would be well-advised to seek legal counsel. Application costs for guardianships may range from $1000 to $2500, depending on whether the potential ward or another family member contests the application. Applications are available from the local county surrogate's courthouse and when completed and notarized, are returned to the courthouse with a filing fee. Part of the application includes waivers of guardianship which must be signed by all immediate family members, renouncing their intention to pursue guardianship. Two doctors familiar with the potential ward must also sign affidavits in support of the guardianship petition.
Once this paperwork is submitted to the court, a court-appointed examiner will review the paperwork and set up appointments to meet with the potential guardian(s) and ward. The interview is mandatory and is designed to evaluate if the person is legally competent to retain any or all rights of decision-making. Based upon these interviews, the examiner writes a report containing recommendations for guardianship of the person and/or property and any limitations the examiner feels should be imposed as safeguards for the ward.
After the surrogate judge reviews the petition and examiner's report, a hearing is scheduled. Normally, both the potential guardian(s) and ward must attend; however, in some extenuating circumstances the ward may be excused from the hearing. This only happens when both doctors who initially filled out the affidavits from the guardianship application packet believe that the person would be adversely effected by attendance at the hearing and the examiner concurs. At the court hearing, a decision is decreed by the judge. If either or both types of guardianship are ordered, the guardian is given directions concerning what reports must be submitted to the court and when they are due.
What if a guardian is doing a poor job? If ward or family members feel that the guardian is not fulfilling the obligations and responsibilities of guardianship adequately, they can petition the court to revoke the guardianship decree or appoint another guardian. The court will usually appoint an examiner to investigate the complaint and rule based on the investigation outcome. Often, the problems can be resolved. However, if any malfeasance, abuse or neglect is found to have occurred, the guardian will not only be removed as guardian, but may also be prosecuted. If there is a stand-by guardian, often the stand-by will be asked to step in. If that is the case, the stand-by can immediately begin to assume the guardianship role, but he/she must also apply to become the primary guardian.
Can guardianship be terminated or modified? Guardianship can, and should, be changed according to the needs of the ward. If the person becomes able to take back certain decision-making rights-for example in vocational and housing decisions-the guardianship should be amended through the court as soon as possible. There are circumstances where a person may recover enough to take back the decisions regarding his/her person, but may not be able to handle finances, or vice versa. Guardianship, as written in law, is meant to be an individually tailored legally binding arrangement that can change as the person's needs and abilities change. In some cases, the person may recover enough to no longer need guardianship. Guardianship can then be terminated. Some wards who have had their guardianship terminated have put in place powers of attorney or health care proxies to cover decision-making needs in the event that they should decompensate medically or mentally.
Are there less restrictive alternatives to guardianship? Yes, some alternatives may better serve the person who needs assistance with decision-making. For example, persons in need of help paying bills and handling month-to-month financial decisions may want to pursue a representative payee. A representative payee is someone appointed to manage social security, veterans' benefits, welfare assistance or other state/federal benefits on behalf of an individual.
Power of attorney is a legal contract between two individuals in which one person gives another the authority to make decisions on his or her behalf. These decisions could be medical, day-to-day, financial or other types of decisions. The individual giving someone the power of attorney must be considered legally mentally competent to make this decision. Durable power of attorney enables the power of attorney to remain in effect when the individual becomes mentally incapacitated.
The best way to decide which alternative will work best is to gather information on all the alternatives and to talk to the individual, close family members, therapist, doctor, and anyone else close to the person. Information can be obtained by contacting the National Guardianship Association at their web site: guardianship.org or by calling (520) 881-6561. Another excellent resource is the National Clearinghouse for Long-Term Care; they can be reached at (202) 619-0724. Information and assistance can also be obtained by contacting an attorney who is familiar with guardianship proceedings.