Advances in modern medicine mean people are living longer than ever. However, there still may come a time when a senior citizen can no longer make medical, financial and other decisions regarding his life. In these cases, a guardian must be appointed to make those decisions for him.
When a Guardian Is Necessary
A guardian is necessary when an individual's ability to receive and evaluate information, or to communicate his decisions, is impaired to the point that he is unable to make decisions regarding his health and well-being. Common causes of mental incapacitation include dementia or Alzheimers, or another disease, such as Lou Gehrig's, that robs the person of his ability to communicate.
Mental incapacitation means the person lacks the ability to make decisions regarding his medical care, his finances, and other aspects of his every day life. It does not mean that he is making poor decisions. For example, you may not like that your mother is taking exotic trips with her much younger boyfriend, but unless she does not understand what she is doing, she may spend her money as she sees fit.
Two Types of Guardian
A guardian may be appointed to make decisions regarding the ward's (the person under the guardianship) health and well-being, his estate (finances), or both. In some states, like Georgia, guardian of the person and guardian of the estate are separate positions, while in others they are combined.
Guardianship of the Person
Guardianship of the person means that the guardian has the authority to make all decisions regarding every aspect of the ward's life, including all housing and medical decisions.
Guardianship of the Estate
In states were guardian of the estate or conservator is a separate position, the potential guardian must prove to the court one of the following:
- The ward has property that will be wasted or dissipated if it is not properly managed
- The ward needs the management of a conservator to ensure proper financial support
The guardian of the estate is responsible for managing the ward's financial affairs, including giving money to the guardian to pay bills, investing money, and applying for government benefits (although this can also sometimes be handled by the guardian of the person).
Differing Terminology
The terminology also differs among states. Where the positions are separate, the guardian of the estate may be called a conservator; in others, like California, a conservator refers to both guardianship of the person and his estate. Regardless of the terminology, the duties of each type of guardian remain the same.
It is possible for a guardian to be appointed in one capacity but not the other. For example, a person may be able to care for his daily needs, but cannot properly manage his financial affairs. In this case, the court would only appoint a guardian of the estate.
Duties of a Guardian
Once appointed, the guardian or conservator has the right to make all decisions regarding the ward's health, well-being and finances. This may include, but is not limited to, making decisions regarding:
- Medical care, including the power to consent to life-saving medical treatment;
- Where the ward will live
- The right to sue
- The sale or purchase of assets.
However, the ward must be involved in all decision making to the greatest extent possible. When making housing decisions, the ward must be placed in the least restrictive environment. So if it is possible for the ward to remain safely in his home if aides were hired to assist him, the guardian must choose that option, if the ward wishes to continue living there.
The guardian must also provide annual reports to the court regarding the ward's well-being and finances.
Termination of Guardianship
A guardianship is ended when the ward regains the capacity to make decisions regarding his health and well-being and to properly manage his finances. Either the guardian or the ward must petition the court to terminate the guardianship in these instances.
A guardianship is automatically terminated upon the death of the ward.
Obtain Legal Counsel
Obtaining guardianship of a senior citizen, especially if it is a parent or loved one, can be a stressful, emotional process. This is especially true if the senior citizen opposes appointment of a guardian and believes he is capable of caring for himself. When considering a guardianship appointment, you should always consult with an attorney licensed to practice in your state to help answer any questions you may have about the process.
