Guardianship, also, referred to as conservatorship, is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.Find A Guardian
Alternatives to guardianship may include:
- Representative or substitute payee
- Case/care management
- Health care surrogacy
- Durable powers of attorney for property
- Durable powers of attorney for health care
- Living wills
- Community advocacy systems
- Joint checking accounts
- Community agencies/services
- Supported decision-making networks
A good guardian will take into account the wishes and desires of the person with a guardianship when making any decisions about the person’s well-being and safety and the security of their assets. The courts will restrict or delegate only those rights that the person with a guardianship is incapable of exercising. When the courts appoint a guardian, the following rights of that person may be delegated to the guardian. These rights may include the right to:
- Determine residence
- Consent to medical treatment
- Make end-of-life decisions
- Possess a driver’s license
- Manage, buy, or sell property
- File lawsuits
Because establishing guardianship is a legal process that can involve the restrictions on the individual’s rights, considerable due process protections often exist at the time the guardianship is established. Protections include:
- Notice to the individual of all court proceedings
- Representation of the individual by counsel
- Attendance of the individual at all hearings/court proceedings
- Ability of the individual to compel, confront, and cross examine all witnesses
- Allowance of the individual to present evidence
- Appeal of the court’s determination
- Presentation of a clear and convincing standard of proof
- The right to a jury trial
Individual due process rights may vary from state to state. The final authority is the state statues where the person with the disability lives. In any type of guardianship, the court may limit the guardian’s authority. The guiding principle in all guardianship is the use of the least intrusive measures that will assure as much autonomy as possible. The guardian’s authority is defined by the court and the guardian may not operate outside that authority. The court may appoint as guardian a family member or friend, or a public or private entity.
When the court appoints a guardian of the person, the guardian may have the following responsibilities:
- Determine and monitor residence
- Consent to and monitor medical treatment
- Consent and monitor non-medical services such as education and counseling
- Consent and release of confidential information
- Make end-of-life decisions
- Act as representative payee
- Maximize independence in least restrictive manner
- Report to the court about the guardianship status at least annually
“Estate” is defined as real and personal property, tangible and intangible, and includes anything that may be the subject of ownership. When the court appoints a guardian of the estate, the guardian may be assigned the following responsibilities:
- Marshall and protect assets
- Obtain appraisals of property
- Protect property and assets from loss
- Receive income for the estate
- Make appropriate disbursements
- Obtain court approval prior to selling any asset
- Report to the court on estate status at least annually
The professional guardian will coordinate and monitor professional services needed by the person, such as selecting a caretaker, in-home care, and other services.
Funds that belong to the person under guardianship remain the property of that person, and do not become property of the guardian. All funds are accounted for and kept separate from the guardian’s personal funds.
The estate guardian acts on behalf of the person only with regard to the person’s assets and the court’s order. All funds must be prudently managed and kept separate from the guardian’s personal funds. For each person that a professional guardian serves, the guardian stands ready to give an accurate accounting of those funds to the court. The professional guardian is an advocate and acts on behalf of the person only to the extent of the court order.
The goal of effective guardianship is to be able to restore the rights of the individual who, for whatever reason, has had some of them removed, restricted, or delegated by a court. It is true that in many instances once a guardianship has been initiated by a court, it is in place until the person dies. However, an annual review and assessment monitors the need for maintaining or terminating a guardianship. The guardian and the court should always be alert to a potential restoration of some or all of the person’s rights.
This brief summary does not attempt to cover all of the aspects of guardianship. Especially in your local area where the law and local court rules may vary from county to county, or from state to state, it is a good idea to make inquires as to what is appropriate for your specific circumstances. Consult your local professional elder law advocate. Please do not call the NGA business office seeking legal advice or direction concerning a specific case. If you require help, we encourage you to identify competent professionals in your area to assist you with your concerns and do suggest that you identify a practitioner in the “Find a Guardian” section of the NGA website that serves your area of interest.
The NGA Ethical Principles, Standards of Practice, and The Fundamentals of Guardianship (available for purchase on amazon.com) are additional resources to guide guardians in their decision making responsibilities.