At any time, illness or accident can strike without warning, leaving even the most able and resourceful people with a diminished capacity to make responsible decisions for themselves. In that situation, the person’s loved ones can petition a court to appoint a responsible person to act on the disabled person’s behalf as a guardian of their best interests.
Guardians are often appointed through the services of experienced elder law attorneys who specialize in drafting the legal documents required by the court to substantiate the factual basis justifying a guardian’s appointment.
Some states refer to guardianships as conservatorships, while other states reserve the term conservator for cases where the court authorizes powers over the subject’s financial assets and related matters.
What Is a Guardianship?
The law presumes that every adult is mentally competent and capable of making their own decisions about their own health, finances, and other matters relating to their life. When evidence is presented to a court demonstrating the person is no longer competent to govern themselves, a court may appoint a guardian to assume the decision-making responsibility for the person.
A guardian’s power can be general or limited, depending on the state law and the individual circumstances in the case.
When Is Someone Incompetent to Make Their Own Decisions?
The criteria used to determine whether a person is incompetent to make important life decisions is governed by the law in each state. A person will not be deemed incompetent merely because they act rashly, irresponsibly, or even foolishly. The standard for determining incompetence requires that the evidence show the person is unable to make rational, responsible decisions due to some physical or mental illness or injury.
In some states, a temporary guardianship can be created to oversee a person’s property, financial assets and healthcare during a period of incapacitation from acute substance use disorders, or during periods of recovery from severe injuries.
However, a person will not be adjudged incompetent merely because they suffer from a mental illness or a developmental disability.
Who Can Be Appointed as a Guardian?
Generally, a close family member is the person who contacts an elder law attorney to seek appointment as another person’s guardian. But the law generally permits any person who is capable and who is not disqualified from being appointed.
Most states prohibit the appointment of any guardian
- who is a convicted felon,
- who is a minor,
- who is a creditor of the person in need of guardianship,
- who employed by a caregiving agency
- who is an employee or officer of a care facility where the person resides,]
- who lacks the education, prudence, and responsibility to perform the necessary duties,
- who lacks the good character or integrity, or
- is a chronic consumer of excessive alcohol or drugs.
Regular Reporting to the Court
The state law where the guardian is being appointed will govern the reporting requirements with which the guardian must comply. The nature and extent of the matters over which the guardian has power may dictate how regularly the court wants to receive status reports.
When a guardian or conservator is limited to exercising fiduciary responsibilities over a person’s financial assets or property, regular accountings are likely to be more frequent. If a full guardianship is granted to family member over a loved one whose incompetence is likely permanent, fewer status reports to the court are typically required.
Filing Guardianship and Conservatorship Petitions
The need for the appointment of a guardian or conservator can rarely be anticipated far in advance. When a loved one is living with a progressive condition that can be predicted to render them incompetent, contacting an elder law attorney can allow time to gather supportive medical records, obtain expert medical opinions, and prepare documents that the court will need to provide a seamless transition to a guardianship without disrupting the person’s care or resources.
When sudden events compel immediate legal action, identifying a Certified Elder Law Attorney (CELA) in your area will assure you of the highest level of professional elder law expert.