Guardianship (also known as conservatorship) is a legal process wherein the court determines that a person (known as a ward) does not have the ability to make or to communicate sound and safe decisions regarding his or her property, due to either lack of capacity or a susceptibility to fraud or undue influence. The court assigns another person (known as the guardian) to manage the ward’s affairs. Often, guardianship is pursued to protect minor children or adults who are in an incapacitated state.
The decision to petition the court for a guardianship is complex and carries a high degree of responsibility as the guardian assumes a level of liability. It is advisable that pursuing guardianship should be approached only after careful consideration and consultation with a qualified attorney. Given our nation’s rapidly increasing geriatric population, the laws surrounding guardianship have nexus to the laws surrounding the elderly (Elder Law). Guardianship law varies from state to state, and may be further broken down in some case to “Guardian of a Person” versus “Guardian of an Estate”, and can be issued on either a full or limited basis.
Elder Law has been designed to protect senior citizens as they enter a vulnerable chapter of their lives as well as provide access to much needed programs such as Medicare and Medicaid. However, it remains a highly complex area of law and the importance of consulting with a qualified attorney with strong background in elder law cannot be underestimated.
Many aspects of a senior’s life engender the need for additional protection such as knowing the signs of financial elder abuse, or when it is time to consider assisted living, either for yourself, your spouse, or a family member. Planning for these chapters of life in advance can bring peace of mind and provide for your future and that of your family. Like Guardianship, the laws surrounding Elder Law may vary from state to state.
Brenda K. Uekert and Thomas Dibble write the following in their joint paper Guardianships For the Elderly: Past Performances and Future Promises (http://www.guardianship.org/reports/Guardianship_of_the_Elderly.pdf): “due to the seriousness of being incapacitated and the loss of individual rights, guardianships are considered to be an option of ‘last resort.’ The court can order either a full or limited guardianship for incapacitated persons. Under full guardianship, wards relinquish all rights to self-determination and guardians have full authority over their wards’ personal and financial affairs.”