What is a Guardianship?
Some individuals with cognitive impairment or intellectual or developmental disability, including older adults, may be in a position where they may not be able to make complex medical and living decisions for themselves. It is preferable for all adults to make plans about who will help manage their finances and medical decisions before they are no longer able to do so. These plans should include naming a health care surrogate decision maker, who can be appointed to communicate for the older person if they can no longer communicate for themselves about their medical treatment. The name of this document varies across states and can include terms such as “Health Care Proxy,” “Durable Power of Attorney,” “Health Care Representative,” or “Advance Directive.”
There can be situations when an older adult might be unable to make decisions due to underlying medical conditions but may not have chosen a person to make decisions about their medical care and finances. In these cases, it may be necessary to ask the courts to appoint a guardian, The guardian can assist the individual with managing finances, providing food and shelter, and/or making medical decisions.
In guardianship hearings, someone asks the court to appoint a guardian to assist the older person in making decisions and taking care of their needs. The person or group who asks the court to appoint a guardian is known as a petitioner. A petitioner can be the older adult’s relative(s). If no relatives are available, social service agencies or healthcare providers (for example) may also be petitioners.
Types of Guardianship
All states allow the courts to establish limited guardianships (also called conservatorships) and unlimited guardianships (also called committeeships).
- A limited guardianship gives the guardian the power to take charge of a specific area that the older person is no longer able to manage (such as finances or medical care).
- An unlimited guardianship removes the legal authority of the older person and gives the guardian the power to make all the decisions about the older person’s life, including matters that affect property, residence, medical care, and personal relationships.
Most states prefer limited guardianships, because an unlimited guardianship requires that the court finds that the person is legally incompetent or incapacitated in all areas of decision making.
Last Updated June 2020