Guardianship

What is a Guardianship?

Some older people may be in a position where they cannot make decisions for themselves.  It is ideal for older 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 a durable power of attorney. This allows someone to 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” or “Advance Directive.”)

However, there are times when an older person becomes unable to make decisions but they have not set up a durable power of attorney beforehand. In these cases, it may be necessary to ask the courts to appoint a guardian, who can assist the older adult with managing finances, providing food and shelter, and/or making medical decisions.

Establishing Guardianship

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. 

Petitioners must demonstrate that the older person is no longer able to safely manage their affairs and needs. If the person is found incompetent or incapacitated, the court will appoint a guardian.

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).
  • 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 on 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 August 2017