How Does Guardianship Work?

How Does Guardianship Work
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If you haven't had any experience with guardianship for adults with dementia, likely, you don't understand just how complex it is. You are not alone.

For family members of the estimated 6.5 million dementia patients in the U.S., it is crucial to understand whether guardianship may be an option for their loved one. A recent article from Next Avenue titled “Thinking of Becoming a Guardian?” explains how the guardianship process works and what factors go into the decision-making process.

Guardianship is the position of being responsible for someone else. State courts usually appoint a guardian to make decisions for a person if the court finds that person incapacitated or unable to make safe and reasonable decisions for themselves. People under guardianship, known as “wards,” often lose their independence in making financial, legal, and healthcare decisions.

Two tasks evaluated when considering guardianship are a person’s ability to manage personal finances and take medications as prescribed.

The court may call on a geriatrician or psychiatrist to evaluate the person’s functional behavior, cognitive function, disabling conditions, and ability to meet their essential needs.

There are benefits to guardianship for someone who is not able to care for themselves. It ideally creates a safety net for a person who cannot make informed decisions for themselves.

This assumes that the guardian is honest and accountable, which is not always the case. The inconsistencies plaguing the guardianship system nationwide include minimum standards for guardians, lack of regular independent reviews of the need for guardianship, and lack of educational requirements for guardians. New Mexico has recently revamped its guardianship/conservatorship system to make the process safer and provide follow-up for incapacitated persons.

There is also a tendency to assign full guardianship to a person rather than less restrictive alternatives.

There are alternatives, but they require planning and discussion. More than 40% of Americans have not discussed their wishes for end-of-life care with their loved ones, according to an article in the Journal of the American Geriatrics Society. Families should have a conversation at the first sign of memory loss or when preparing for retirement regarding wishes for end-of-life care and write them down as part of an Advanced Directive—also known as a Living Will and Health Care Power of Attorney—when preparing their estate plan.

Another essential document, although not legally binding, is a “Value History,” where you share your values and beliefs as they may impact care choices.

Designate a Power of Attorney and list two or even three backup candidates. This person will be responsible for financial, legal, and personal matters, avoiding the need for guardianship.

Appointing a family member or friend as a guardian is the ideal solution. However, there are instances when the best person to be a guardian is not a family member but a court-appointed outsider. This relieves the family of needing to inform a person who has dementia with the news of having to move into a nursing home facility or sifting through financial records to learn that the family home is in foreclosure. The family can focus on being supportive and loving while the guardian deals with the sometimes harsh realities of the person’s life.

Speak with your estate planning attorney to learn about guardianship and whether it may be the right move for your family.

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