How Does Guardianship Work?

Many people lack understanding about guardianship for adults with dementia. You’re certainly not alone in this confusion.

For family members of approximately 6.5 million Americans living with dementia, understanding whether guardianship represents a viable option is essential. A recent Next Avenue article titled “Thinking of Becoming a Guardian?” explores how this legal process operates and what considerations drive decision-making.

What Is a Guardian?

A guardian assumes responsibility for another individual, known as the “ward.” State courts typically appoint a guardian only after establishing that the proposed ward cannot make safe, reasonable decisions independently. This appointment carries significant weight, as those placed under guardianship frequently lose autonomy in managing financial, legal, and healthcare matters.

Evaluating Capacity

When assessing potential wards, professionals such as geriatricians or psychiatrists conduct evaluations examining functional behavior, cognitive capacity, disabling conditions, and the individual’s ability to satisfy essential needs. Two frequently evaluated capabilities include managing personal finances and taking medications appropriately.

Benefits and Drawbacks

Guardianship offers substantial advantages for individuals unable to self-care, ideally establishing protective safeguards for those incapable of informed decision-making. However, the system has significant shortcomings, including minimal guardian standards, insufficient independent reviews of guardianship necessity, and absent educational prerequisites for guardians.

Once assigned, individuals often become overlooked without ongoing monitoring. Someone lacking decision-making capacity cannot independently advocate for themselves, hire attorneys, or access funds for court proceedings. Additionally, courts frequently impose full guardianship rather than exploring less restrictive alternatives.

Alternatives to Full Guardianship

Less restrictive options exist but demand advance planning and family discussions – conversations typically neglected. According to the Journal of the American Geriatrics Society, over 40% of Americans haven’t discussed end-of-life care preferences with loved ones. This conversation should commence when memory loss emerges or during retirement preparation.

Essential documents include:

• Advance Directive: Guides caregivers regarding end-of-life care wishes
• Value History: Documents personal values and beliefs influencing care decisions
• Power of Attorney Designation: Designates financial and personal matter management, with backup candidates listed

Choosing the Right Guardian

Appointing a family member or friend typically represents an ideal solution, though not universally. Sometimes an impartial court-appointed outsider serves better, relieving families from delivering difficult news about nursing home placement or reviewing finances. The family can focus on providing emotional support while the guardian addresses harsher realities.

Next Steps

Consult your estate planning attorney regarding guardianship functionality and whether it suits your family’s circumstances.

Reference: Next Avenue (Dec. 23, 2022) “Thinking of Becoming a Guardian?”

If you or a loved one needs assistance with elder law, probate or estate planning issues, do not hesitate to contact us to schedule a consultation. We are here to help.