When is Guardianship Appropriate?

When an older adult becomes incapacitated, and unable to make important and rational decisions for themselves, it may become necessary for a court to appoint a legal guardian or conservator, who will oversee the person’s health and wellbeing, by taking responsibility for financial and/or healthcare matters.

An older adult’s incapacity is commonly as a result of cognitive issues, dementia, and frailty.  It’s a subjective matter, and open to wide interpretation. Particularly, when the older adult does not agree that they need guardianship, compelling evidence to support the claim of incapacity, must be provided, and a physician will be required to certify incapacity.

Elder law regarding guardianship/conservatorship varies from state to state, and it is important to understand the law in the state in which the older adult resides. Guardianship may be divided into two categories – healthcare and finances.  Responsibility for both may not necessarily be given to the same person. If an older adult has nobody prepared to act as their guardian, the court will appoint a public guardian.

It is the responsibility of the court to make the guardianship in the best interests of the older adult; safeguarding their health and wellbeing, as well as their finances, and protecting them from potential financial/physical, and psychological abuse.

Prior to filing for guardianship, it must first be determined that less burdensome options such as financial power of attorney and medical power of attorney, are not most appropriate, at that time.

There are three basic steps to obtaining guardianship:

1. Obtain a doctor’s certification of incapacity
2. Gather other evidence to substantiate the claim of incapacity. This can be records of accidents in the home, hospitalizations, inappropriate use of funds and assets, self-neglect, failure to attend to routine financial matters, such as paying necessary bills and utilities, and any other issues that render the person a danger to themselves and/or others.
3. File the application for guardianship in probate court, and give notice to the proposed ward and other relatives of the filing.

It can take considerable time for the court to make its determination.  The court will also appoint an Attorney Ad Litem to represent the person over whom the guardianship is sought.  The court is also responsible for checking that any person applying to be guardian are fit to do the job, by means of conducting background checks, and ensuring there are no conflicts of interest.

Becoming a guardian not only means taking responsibility for the ward, but, keeping rigorous records, that must be submitted to the court for inspection.  A guardian may claim reasonable compensation from the ward’s assets, for the work and expenses involved in being guardian, and this will be determined by the court.  Remember, a guardian should act in the best interests of the ward, and not the best interests of themselves.

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