What exactly is a guardian?

A guardian is someone who is appointed by a court to make personal and/or financial decisions on behalf of another person. "Guardian" is a general term for a court-appointed surrogate (substitute) decision maker. A person who has a guardian is called an "incapacitated person."

Who appoints a guardian?

A court of law appoints a guardian after hearing evidence that a person is incapable of making decisions and deciding that the person needs a surrogate decision maker. The law requires due-process rights for the alleged incapacitated person. These rights are intended to protect a person from being inappropriately declared incapacitated. The rights include the right to be notified of the date and place of the hearing, the right to be present at the hearing, and the right to be represented by a lawyer.

Who May Be a Guardian?

The court may appoint almost anyone as your guardian if the person meets legal requirements. Often the court appoints the person filing the petition. Most courts like to appoint a relative who knows the person and is most likely to act in his or her best interests. However, the courts may appoint a friend or attorney, especially if no family members are available. The courts also may appoint multiple guardians, either with shared responsibilities or with responsibilities split between them. If there are no friends or family willing or able to serve as guardian, the court may appoint a public or private agency to act as the guardian and to charge a fee for that service.

When is the appointment of a guardian appropriate?

A person needs a guardian when:

  • they can no longer manage their affairs because of serious incapacity;
  • no other voluntary arrangements for decision making and management have been set up ahead of time, such as a power of attorney or a living trust (or if they have been set up, they are not working well) and
  • serious harm will come to the individual if no legally authorized decision-maker is appointed.

A guardianship is a serious step that should only be taken in the case of a serious inability to make or understand the consequences of decisions. It should not depend on stereotypical notions of old age, mental illness, or handicaps. A person has a right to make foolish or risky decisions. These decisions by themselves do not mean that the person has a decision- making incapacity

May the court remove a guardian?

Yes, a guardian may be removed if the incapacitated person can prove that he or she has regained the capacity to make decisions. It can be hard to have a guardian removed. Therefore, if someone’s incapacity may be temporary, consider whether some other legal tool (such as money management or a representative payee) will meet the person’s need for help and make it unnecessary to get a guardianship. A court also may remove a guardian who is not properly carrying out his or her responsibilities. Usually a new guardian will replace the person who is removed.

What if someone thinks I need a guardian, and I do not want one?

You have the right to fight the petition for guardianship. If you do not think you need a guardian, you must let the court know that. Usually you do this by appearing in court on the day of the hearing or asking someone to represent you at the hearing. It is best to get your own lawyer to represent you at the hearing. If you cannot afford one, the court is required to appoint one at the state's expense.

If I need a guardian, may I specify whom I want and do not want to play this role?

Yes, the court will give due weight to your preference, and will follow your preference unless there is good cause not to do so. You should nominate a guardian in your power of attorney as part of your general planning for incapacity. Sometimes even the best plans for incapacity fail (for example, if your agent under your durable power of attorney passes away before or after you become incapacitated), so it is a good idea to name in your planning documents one or two people whom you want as your guardian if that becomes necessary.

Are there any disadvantages to the appointment of a guardian?

Yes. Although a guardianship may be necessary to protect the welfare of an incapacitated person, it also results in the loss of individual rights. The person under a guardianship may lose several civil rights: the right to marry, the right to vote, the right to hold a driver’s license, the right to make a will, the right to enter into a contract, and other rights. Because of its serious consequences, guardianship should be considered the last resort for helping someone who is experiencing incapacity.

In addition, the court proceedings themselves can be costly, time-consuming, and emotionally trying for a family. Once in place, a guardian’s ability to manage the estate is far less flexible than would be under advance planning legal tools such as durable powers of attorney or living trusts. Guardians must operate within strict fiduciary limitations and must file annual accountings with the court. On the positive side, the fiduciary rules and court accountings ensure at least some oversight and accountability of the guardian.

My elderly aunt needs some help with her affairs, but she is not totally incapable. May a guardianship meet her needs?

If a person has partial capacity, his or her guardian may be given only partial power over his or her affairs. This is called a "limited guardianship." In your aunt's case, the court's guardianship order would identify the specific matters over which the guardian has authority. Your aunt would retain legal authority over all other areas of her life.

The courts try to ensure that a guardianship is the “least restrictive” alternative. This means that a guardianship restricts the incapacitated person as little as possible, letting the incapacitated person do whatever the disability allows.

Suppose your aunt can no longer manage her large estate, but she can handle her daily finances. A guardianship should let her keep control over everyday expenses. Or, let us say your aunt needs placement in a nursing home by the guardian. If she can say what type of nursing home she wants to live in, the guardian should honor those wishes.

Even when a limited guardianship is not feasible, the guardian should try to involve the incapacitated person in making decisions whenever possible.

My elderly mother is often confused. I think she ought to have a guardian to look after her interests. What do I do?

First, you may want to contact your local area agency on aging to see if there are any programs or services that might help your mother manage and make it unnecessary to obtain a guardian for her. It will also help to have her examined by a doctor or psychologist experienced in geriatric evaluation. A geriatric evaluation will typically involve evaluation by more than one specialist from different disciplines, such as medicine, nursing, and social work. Often, a persons' decision making may be impaired because of physical or other causes than can be corrected.

If the evaluation supports the need for a guardianship, check with a lawyer to learn requirements and procedures of the guardianship law. The appointment of a guardian requires the filing of a petition with the court, notice to your mother and other interested parties, and a court hearing. You will need a lawyer to help you through it.

The court may appoint an attorney to represent your mother. At the hearing, a judge will review the petition and the medical reports.

The judge may ask the person filing the petition why there is a need for a guardianship. The judge may also ask the allegedly incapacitated person some questions. The hearing is usually fairly informal. If there is disagreement, the judge may set the case for a formal hearing with witness testimony, cross examination, and argument by counsel.

This sounds very expensive. Who pays for a guardianship?

It can be expensive. There are court charges and attorney fees and fees for the doctor or other persons who examine the alleged incapacitated person to assess his or her capacity. If the court appoints a guardian, the incapacitated person’s funds usually pay the fees in connection with appointing the guardian.