Senior Guardianship: What You Need to Know About Guardianship
Although the level of advancement varies by person, age ultimately brings impairment of physical and mental capacity.
Many elderly people ultimately lose the ability to handle their financial and personal affairs. When the capacity to decide dwindles, guardians step in to maintain the necessary care and attention to matters affecting the well-being of elderly people.
In this article, we will discuss senior guardianship, how it works, and everything you need to know about conservatorship.
What is a Guardianship?
In a guardianship, also known as a conservatorship in some states, an individual, agency or institution cares and makes decisions for an individual.
That individual becomes a “ward” of the guardian because of his or her inability to manage affairs or care for him or herself. Alzheimer’s disease, other neurocognitive defects and deterioration, or strokes may cause elderly individuals to neglect hygiene (such as brushing teeth, taking baths, using the bathroom), forget medications, loved-ones or close acquaintances or appointments; fail to pay bills or otherwise track spending, and succumb to scams often perpetrated by phone calls and the mail.
An elderly person who presents a danger to themselves likely will need a guardianship. Such risk of harm often manifests itself when the person wanders from home or a facility or attempts suicide or acts of self-harm. In these cases, a guardianship attorney may lend his or her services to starting an emergency guardianship proceeding.
What Are the Rights and Powers of a Guardian?
Elderly wards lose many personal rights when a court creates a guardianship incapacitated person.
These rights include:
- Driving a vehicle or having a license
- Entering into contracts
- Jury service
- Possessing or buying weapons
- Filing lawsuits or other legal proceedings
- Buying or selling land, vehicles or other property
Instead, the guardian assumes powers such as:
- Deciding where the ward resides, including placement in a nursing home or other assisted living
- Determining medical care for the ward;
- Providing food and clothing
Incompetent or incapacitated wards often need guardians to oversee and control their property, such as land, homes, financial accounts, vehicles and investments. Such guardians may, in certain jurisdictions, operate as “guardians of the estate” in addition to or instead of guardians over the person.
Guardians of a ward’s estate possess the authority to invest the ward’s money in savings accounts, mutual funds, stocks, bonds or other products. Depending on the jurisdiction, the conservator may have to seek court permission to borrow against or sell the ward’s real property. If a sale occurs, the proceeds are applied to the care and maintenance of the elderly person or deposited for investments or other productivity.
Certain elderly persons may have owned or controlled businesses. Within the guardian’s powers lie the ability to operate the business or sell it. Other money matters in conservatorship involve retirement finances and hiring attorneys, accountants, financial advisors and other professionals as may be needed to advance the elderly person’s financial interests and legal rights.
What Are the Duties of a Guardian?
Above all else, a guardian acts as the elderly ward’s fiduciary. This duty requires the guardian to act with loyalty to and in the best interest of the ward. The standards of the National Guardianship Association call for guardians to be aware of and report actual or potential neglect or abuse of the elderly ward.
To that end, the law generally frowns upon the guardian’s purchase of the ward’s property or otherwise receiving the ward’s property. Such acts of self-dealing carry the potential that the guardian does not pay fair price for the property or otherwise gets a benefit at the expense of the elderly person.
Further protection of the ward comes via court supervision. Depending on the state, the guardian must obtain a bond. This allows the ward to be reimbursed if the decisions, actions or omissions of the guardian cause harm to the ward. The damages often take the form of lost property or funds.
Courts require the guardian to file during the guardianship accountings. With these documents, the guardian lists property received on the ward’s behalf and how the funds were spent. Receipts, bank statements, invoices and other documents help the guardian or a guardianship attorney representing the guardian prepare the account. In many ways, the handling of a guardianship resembles a deceased person’s estate in a court probate proceeding.
According to the National Guardianship Association, guardians also have the duty to know when it may be time to terminate the guardianship. Such a decision may arise upon medical opinions or other sufficient evidence that the elderly person or other ward has the capacity to make decisions for him or herself.
What is Required to Establish the Need for a Guardianship?
A guardianship represents the involuntary (from the ward’s perspective) of control over the finances and even personal affairs of another person. As such, these relationships are created by order of the court.
Creating a guardianship involves two stages. The first consists of a petition filed with the court. The spouse, child, sibling, other relative, friend or an agency such as a county or municipal social services agency may file the petition. In it, the petitioner furnishes facts or other information that, if true, shows that the elderly person is incapacitated or incompetent and needs a guardian.
Along with the person alleged to be incapacitated or incompetent, the petitioner must name and have the petition served, or delivered, to the would-be ward’s family or relatives. In some states, these interested people may consist of those who would inherit had the ward instead been a deceased person who did not leave a will.
To protect the potential ward’s interests in the incompetency stage, a court will appoint a guardian ad litem. This “friend of the court” will interview elderly person to gauge the cognitive skills and condition. The questions may involve simple topics, such as:
- The current date
- Who is the President of the United States
- Names of family members
- Events from the elderly person’s past
The guardian ad litem likely will also gather information from family members or friends. Thereafter, the guardian ad litem reports the information and his or her recommendation to the court. Although the report often carries weight, it does not bind the court probate or other judge who must ultimately determine whether the elderly person needs a ward.
The findings and other testimony will take place in a hearing. Even if family members or others do not oppose or even agree to the guardianship, the judge may still interview elderly person.
Who May Become a Guardian?
If the court declares the elderly person to be incapacitated or incompetent, then the proceeding turns to appointing a guardian.
A court may appoint a suitable person or institution to serve as the guardian. As a general rule, the preferred choice is the spouse or a close relative of the ward. However, the judge retains authority to look elsewhere if the spouse or related person does not prove suitable for the role. In some cases, a social services agency may serve as a guardian.
As the suitability of the proposed guardian is paramount, the judge is not bound by nominations or suggestions made by the ward before incompetency. However, it may be helpful if a person with the capacity to do so nominates someone in a power of attorney to be guardian. Individuals may request in a will that someone become guardian for a particular loved one. Again, the court is not required to follow the wishes of the nominating person.
What Are the Alternatives to a Guardianship Incapacitated Person?
In especially contested cases, a guardianship proceeding taxes the emotions and finances of the petitioner, respondent and family members.
A notarized power of attorney may reduce or eliminate the need for a guardianship proceeding. In such a document, the elderly person (while competent) names someone to look after his or her financial and other affairs.
The attorney-in-fact obtains the authority to, among other things:
- Pay bills
- Purchase or sell property
- Deposit checks or other funds into checking or savings accounts
- Invest in stocks or bonds
- Bring, defend or settle lawsuits
- Repair property
- Handle retirement finances
Powers of attorney can take effect immediately and survive, or continue, even if the person granting it later becomes incapacitated or incompetent. Other individuals may elect to have the power of attorney take effect only when they are declared by one or more physicians to be incompetent, incapacitated or otherwise unable to handle their affairs.
A financial, or traditional, notarized power of attorney does not confer on the agent authority over health care matters. For such decisions, an individual may sign a health care power of attorney to allow an agent to decide on medical treatment if the principal cannot.
With the aid of an advance directive attorney, an individual can direct a hospital or other medical provider to withhold nutrition or life support. These living wills come with strict requirements on who can prepare and witness their execution. For example, most states prohibit nursing homes, medical providers and creditors or heirs of the individual from witnessing a living will. For these and other reasons, an advance directive attorney represents the best person to prepare this declaration of a desire for a natural death. The attorney and his or her staff cannot inherit from the person signing the living will.