protective proceedings

guardianship

The guardianship of an adult, in which a judge appoints an individual to make choices for a person over 19, is appropriate when the adult lacks capacity. Capacity is a general legal term that refers to a person’s cognitive ability. For instance, when people lack capacity to make a will, they cannot execute a valid will because they would not understand the document’s contents.

In the context of adult guardianship, capacity is an individual’s ability to make decisions to care for themselves. When a court finds that an adult cannot make personal or financial choices, it can appoint a guardian to help the person. Depending on the type of arrangement, the guardian can decide what kind of care the adult receives and where the adult lives, and may also manage the adult’s finances.

The court will examine several factors to determine whether a person is incapacitated and needs a guardian. According to The Elder & Disability Law Center, characteristics that suggest incapacity can include the following:

  • Difficulty understanding the nature and effects of a health care decision

  • Problems with communication and expressing wishes

  • Failure to maintain a safe environment

  • Issues living independently

  • Trouble managing finances

  • Deficits in long-term care planning

  • Forgetfulness about taking medications

Courts decide whether a person needs a guardian on an individual basis. Depending on the adult’s needs, the arrangement can be more — or less — restrictive. Capacity exists on a spectrum. So, a person can have the ability to make some decisions, but may need help in specific areas.

Full versus Limited Guardianship

The scope of incapacity can impact how extensive the guardianship is. Courts can order full guardianship when adults cannot handle all personal and financial decisions.

Yet many with decision-making challenges retain some capacity or only have difficulties with certain choices. For these individuals, total guardianship would overly restrict their independence.

When people require assistance with particular aspects of life but are self-sufficient in other domains, a limited guardianship may be fitting. Limited guardianship restricts the guardian’s authority to specific types of decisions, such as health care or housing, while the ward otherwise remains autonomous.

In other cases, the type of incapacity impacts the type of guardianship. For instance, some people may struggle with financial decisions, but understand health care choices. In those cases, the court can order an arrangement where a trusted individual helps with money only, such as a guardianship of the estate or a financial conservatorship.

Some people struggle with decisions but can still express their wishes and understand alternate courses of action. They might need someone to explain their options clearly, or they might only be capable of making decisions at certain times of day. For instance, those with dementia may experience more clarity in the morning compared to the evening.

Full guardianship that completely removes their autonomy would be improper for individuals with some decision-making capacity. In these cases, an alternative to guardianship, such as supported decision-making, could be a better fit. In instances where people have some capacity, they may be able to execute power of attorney documents, selecting trusted persons to act as their financial and health care agents.

If you or your loved one are exploring guardianship, speak with McInerney Law to learn more about the options and alternatives available to you.

conservatorship

Financial guardianship or a conservatorship gives the guardian the authority to oversee the protected person’s finances and access money to pay bills. In many cases, the terms of the arrangement require the guardian to seek court approval before making financial actions on behalf of the ward, such as spending money and selling assets.

When Do Courts Order Financial Guardianship of an Adult?

Courts appoint financial guardians when people demonstrate that they cannot handle their finances on their own.

  • Individuals who frequently forget to pay bills might need help with finances. For instance, a person might need help remembering to pay bills and handling money.

  • Those who are vulnerable to financial exploitation might also need guardians. For example, suppose a person makes significant payments to an online scammer. In that case, a loved one might petition the court to become the person’s guardian to protect them.

  • Individuals with diseases and disabilities that prevent them from understanding money may also need the help of a trusted person. For instance, dementia can cause people to have executive functioning difficulties that impact their ability to handle money.

When a person has significant assets but needs help managing them, courts will order financial guardianship. Individuals with limited income and assets might not need financial guardians.

alternatives

There are alternatives to guardianship and conservatorship that you can consider. You can always revisit the idea of a guardianship if you need to during the individual’s lifetime if the need should arise. Instead, consider these alternatives:

·        Durable Power of Attorney

·        Advanced Health Care Directive

·        Special Needs Trust

·        ABLE Account

·        Supported Decision Making, the Colby Act

Each of these options allows others to assist a person with a disability with his or her decision making. However, each alternative allows the person with the disability to retain some decision-making authority. As previously explained, a full guardianship gives all decision-making authority to the guardian.

“We are grateful for jenny’s service and dedication to the community in providing educational opportunities for our students.”

— The Arc of Shelby County