Written by Attorney Vincent Lyon
Time may come a loved one suffers from diminished ability. Someone may have to make decisions for them. How do you know when you would seek a guardianship, and what options are available?
Guardianship is a legal relationship between a person lacking capacity to exercise certain rights – the Ward – and a person the Court empowers to exercise rights for them – the Guardian. The state does not create it lightly. It involves the state taking someone’s legal rights. Its purpose is to protect individuals who are vulnerable or susceptible to exploitation, but protection comes at the cost of autonomy.
Don’t seek guardianship without cause. When a loved one is losing capacity, anger and fear arise for obvious reasons when the subject is mentioned to them. That conversation is best made when there is time to take smaller steps, but often only happens when a person has refused any help until it’s too late.
Everyone makes bad decisions. Making foolish decisions is not enough to take a person’s rights. It is not making bad decisions that requires guardianship, but the lack of capacity to make good decisions. Keep in communication with your loved one and set matters in place while they still have the capacity. There are many steps before guardianship.
If your loved one can handle most daily living decisions, but is forgetting to pay bills or having trouble keeping track of money, you can make an arrangement with their bank. The easiest is having a joint bank account. This has the advantage that it doesn’t take any of their rights away. There are few protections, but it is an easier path. Once set up, you can arrange automatic bill payment and direct deposits so they don’t have to remember and don’t get late fees or phone service cut off.
If there are more difficulties than occasional forgotten bills, a Power of Attorney may be appropriate. This document gives an agent the power to act for the principal in any range of financial or contractual actions. A Durable Power of Attorney continues to operate when the principal is incapacitated. The principal delegates authority, without giving up any of the authority themselves, and can revoke it later. This, and the related Designation of Healthcare Surrogate, should be prepared by an attorney.
The Designation of Healthcare Surrogate delegates authority to make medical decisions. It allows the surrogate to access medical information, and in the event a healthcare provider needs a decision made quickly and the patient can’t communicate, the surrogate can make the decision.
The Durable Power of Attorney is useful, but has limitations. Certain rights are not delegable. If the principal’s capacity is challenged, Powers of Attorney can be suspended. Because they are easily revoked or suspended, a service provider may be reluctant to honor them. The elder can establish a trust and have the trusted person be a co-trustee, or successor trustee in the event of incapacity. A trust is more expensive, but the trustee is held accountable, and the authority of the trustee is not suspended because the grantor becomes incapacitated.
If these can’t meet the needs that arise, it may be time for a guardianship. If the elder cannot make good decisions, or doesn’t understand the consequences of their actions, you should talk to an attorney about starting the process. It requires a panel of 3 health care professionals, approved by the court, to evaluate the alleged incapacitated person. Their opinion, with any other evidence to the individual’s capacity, will be presented to a judge, who will determine if the person lacks the capacity to exercise specific rights, and which, if any, the person can retain.
Advantages include letting family members know someone is making decisions, giving clear legal authority to someone, and providing accountability and judicial oversight of decisions. But, it can be humiliating or embarrassing to an adult who has some capacity, it is expensive and difficult to begin, it requires reporting and tracking of expenses and medical care, and is difficult to remove if capacity returns.
If someone has not prepared any of the documents discussed above, or if someone is being exploited or at high risk of exploitation, then you may need to start a guardianship. If you can have the discussion before it’s necessary, do it. They will get over it because they will know you care.