One of the most difficult situations you may ever face could be dealing with the incapacity of a loved one whose decision making could be putting them or someone else in danger. A diagnosis of a progressive disorder like Alzheimer’s disease and dementia does not mean that capacity is automatically lost; however, over time, that person’s ability to reason, make rational decisions or care for themselves can be greatly diminished. Unfortunately, there a number of seniors who are becoming unable to provide or care for themselves due to either physical or mental incapacity. Guardianship is a legal process that can be used to help that senior who really needs someone to look after their affairs and protect their well-being.

What is Adult Guardianship?.

Guardianship of an adult is a legal process by which an individual is appointed to make decisions for an incapacitated or disabled individual. A guardianship is a court ordered relationship between the person who needs help, legally referred to as the ward, and the person who is appointed to help, otherwise known as the guardian.  To establish a guardianship, the court must find that the proposed ward is indeed an incapacitated person and that it would be in their best interest to have the court appoint a guardian to protect them, their rights and their property. Once a guardianship has been established, the guardian has legal responsibilities and is required to perform certain duties when caring for and managing the wards affairs. Dealing with an adult who can no longer support or care for themselves is a difficult situation, but adult guardianship works to protect vulnerable people from neglect and exploitation, to support those who need assistance to meet their own basic daily needs, and allows someone to advocate the affairs for an individual who needs help making medical or financial decisions.

What is incapacity?.

For a court to order a guardianship, it must be clearly proven that the proposed ward is physically or mentally incapacitated. More specifically, the law states that an incapacitated person is an individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for their own physical health, or to manage their own financial affairs. In circumstances where immediate action needs to be taken in order to prevent imminent harm to the individual, the court will require further proof that there is a substantial danger to the individual. Because all individuals have the constitutional right to do whatever they want with their persons or their property, it takes more than just making unwise choices about one’s person or estate to legally restrict a person’s ability to make their own decisions. Therefore, the determination of incapacity is carefully considered by the courts and must be proven clearly and convincingly.

Who will serve as the guardian?.

Any family member, friend or interested party may ask the court to be appointed as guardian for an individual who they believe to be incapacitated and in need of a guardian. Typically, the person who asks the court to establish a guardianship is the one who is seeking to be appointed as the guardian—however, any one can contest the guardianship, including the alleged incapacitated person. If the court determines that a necessity for guardianship exists—that the proposed ward is indeed incapacitated—the next determination is who should be the guardian for the ward. When selecting a guardian for an incapacitated person, the court will consider a number of different factors including the preference of the ward, the circumstances surrounding the incapacity and who will serve the ward’s best interest. The law provides a preferred order of appointment beginning first with the spouse and then looking at the nearest of kin who is best qualified to serve as guardian. Also, a person may make a written declaration of who they wish to serve as their guardian if they become incapacitated before the need ever arises. In that circumstance, the court should appoint the designated person to serve as guardian in preference to any other person unless they are otherwise disqualified.

Alternatives to Guardianship.

Guardianship is typically the last resort when trying to help and protect an individual. As referenced earlier, an individual’s right to make their own decisions concerning themselves and their property is one of our greatest freedoms. Therefore, courts are reluctant to order a guardianship unless the individual is clearly incapacitated and needs help in order to protect their livelihood. Instead, the court may establish a temporary or limited guardianship that grants authority for a specific purpose or protects against a specific threat without totally removing an individual’s right to make their own decisions.  

Conversely, there are alternatives to guardianship that encourage people to be more independent, allow them to keep some or all of their rights, and help them retain a sense of self and control. One of the most powerful and preventative alternatives are Powers of Attorney. By executing a Durable Power of Attorney and a Medical Power of Attorney, a person has effectively appointed an agent to act on their behalf in almost every aspect should the need to arise. Other possible alternatives include, but are not limited to: designating a representative payee, accessing Medicaid programs, adding someone as a convenience signor on your checking account, finding available community serves, such as meals on wheels or transportation services, or helping to establish shared attendant care and emergency response services.

How can you help?.

So if you know anyone who is no longer able to care for their basic needs and you do not know what to do, contact Ross & Shoalmire, LLP and set up a consultation. One of our elder law attorneys will be able to assess the situation and determine if guardianship will be necessary to help that individual or whether a less restrictive alternative is an option. If you do not know anyone who needs that kind of help, but you want to best prepare yourself and your family to deal with any problems that may arise in the future & avoid guardianship we can help with that too.  Just give us a call.