How To Get Guardianship of an Adult: Preparing for the Future

Are you worried about your family member's future? Do they need assistance with personal care, financial management, and legal matters? Preparing a guardianship plan is a proactive step to protect your loved one's needs and interests. Learn how to create a comprehensive guardianship plan for your care recipient, the different types of guardianship for adults, and how to implement a legal guardianship plan.

What is the difference between family caregiving and legal guardianship? 

Guardianship and family caregiving are two distinct forms of caring for individuals who may require assistance with decision-making and daily activities. Guardianship is a legal relationship where a court appoints a legal guardian to decide for an incapacitated individual. 

In contrast, family caregiving is an informal arrangement where family members or friends care for a loved one. While guardianship involves a formal legal process and provides decision-making authority to the appointed guardian, family caregiving typically involves emotional and physical support without legal authority.

Is guardianship always necessary?

Guardianship is not always the best option for every situation. Other alternatives may be less restrictive and allow your loved one to maintain more independence and control over their own life. Some alternatives for guardianship may include:

1. Power of attorney: If your loved one can understand and sign legal documents, they may be able to appoint someone as their power of attorney, allowing the designated person to make decisions on their behalf without the need for guardianship.
2. Healthcare proxy: A healthcare proxy is a legal document that allows your loved one to appoint someone to make healthcare decisions on their behalf if they cannot do so themselves. This can be a less restrictive alternative to guardianship.
3. Advance directives: Advance directives are legal documents outlining your loved one's wishes for medical treatment and end-of-life care. These documents can help guide decisions about your loved one's care without the need for guardianship.

An attorney specializing in elder law can help you assess your loved one's situation and determine the best course of action for their care.

Does guardianship override power of attorney?

While both guardianship and power of attorney grant decision-making power to another person, guardianship and power of attorney differ in scope and extent. In general, guardianship typically overrides power of attorney, as guardians are responsible for making decisions on behalf of their wards. In contrast, power of attorney typically only grants decision-making authority within specific areas and limitations outlined in the document. 

Identifying the need for legal guardianship

Before creating a guardianship plan, find out if your family member needs assistance in decision-making. Medical and cognitive assessments, reviewing medical records and history, and consultation with healthcare providers can help evaluate the family member's capacity. Identifying areas where the family member needs assistance with personal care, financial management, and legal matters is also essential.

There are different types of guardianship for adults that caregivers need to know:

• Limited guardianship: Restrictions placed on the guardian's decision-making authority
• Plenary guardianship: Full decision-making authority over the ward's affairs
• Co-guardianship: Two or more guardians share decision-making authority
• Temporary guardianship: Appointed for a limited period or circumstance

Choose the type of guardianship that fits the needs of your care recipient. You may want the input of their doctor, an attorney, and family members before making a decision.

To decide if guardianship is necessary for your loved one, you may wish to consider the following:

1. Capacity: Assess your loved one's ability to make decisions. Can they understand the consequences of their choices and make informed decisions? If not, guardianship may be necessary.
2. Level of care: Consider your loved one's level of care needs. Do they require 24/7 care or supervision? Do they need assistance with medical decisions or financial management? If so, guardianship may be necessary to ensure they receive the appropriate care.
3. Wishes: Take into account your loved one's desires and preferences. Do they have a clear understanding of their care needs and preferences? Are they able to communicate these effectively? If they are, guardianship may not be necessary.

How to get guardianship of an adult

Getting guardianship of an adult can be a complex and involved process. Here are the basic steps:

1. Determine the need for guardianship: Guardianship may be necessary if an adult cannot make informed decisions regarding their personal care, medical treatment, finances, or other matters due to a disability or incapacity.
2. File a petition: The first step in obtaining adult guardianship is to file a petition with the appropriate court. The petition must include information about the proposed guardian and why guardianship is necessary. Consider consulting with an attorney to guide you through the process, help you complete the required forms, and represent you in court if necessary.
3. Provide notice: Next, notice must be given to the proposed ward and other interested parties, such as family members. They will have the opportunity to contest the petition if they wish.
4. Attend a hearing: The court will hold a hearing to determine whether guardianship is necessary and whether the proposed guardian is suitable. The proposed ward may also attend the guardianship proceedings and provide input.
5. Obtain the court order: If the court approves the petition, it will issue a court order granting guardianship to the proposed guardian. The guardian will then be responsible for making decisions on behalf of the ward.
6. Follow-up: Guardians must file annual reports with the court to update the court on the ward's well-being and the decisions they have made on their behalf.

The guardianship experience

A guardian makes decisions for family members when they cannot make decisions for themselves. The guardianship experience can be complex and challenging, both for the guardian and the ward. From navigating legal requirements to managing financial decisions and medical care, the process requires careful attention to detail and a deep understanding of the ward's needs and preferences.

What makes a good legal guardian? 

A good legal guardian of an adult is someone responsible, trustworthy, and able to make decisions in the ward's best interests. They should be empathetic, understanding, and able to communicate effectively with the ward and other involved parties, such as healthcare providers or family members. The guardian should have a good knowledge of the ward's needs, preferences, and values and be willing to advocate for them. They should be organized and able to manage finances and legal documents, and have the ability to navigate complex medical and legal systems. A good guardian should be able to balance the ward's independence and autonomy with their need for support and protection.

What are the challenges of being a guardian? 

Being a guardian for an adult can be a challenging and rewarding experience. Some of the challenges of being a guardian include:

1. Responsibility: Being a guardian carries significant responsibilities, including making decisions about the adult's healthcare, finances, and living arrangements.
2. Time commitment: Being a guardian can be time-consuming, requiring regular meetings with healthcare providers, financial institutions, and other parties involved in the adult's care.
3. Emotional strain: Caring for an adult who is incapacitated or has special needs can be emotionally challenging, requiring patience, empathy, and understanding.
4. Legal and financial complexity: Guardianship involves navigating complex legal and financial issues, including managing the adult's financial affairs and complying with legal requirements for reporting and oversight.
5. Conflict resolution: Guardians may need to resolve conflicts with family members, healthcare providers, or other involved parties regarding the adult's care or finances.
6. Communication: Effective communication is essential for successful guardianship, requiring clear and timely communication with the adult under your care, as well as with healthcare providers, attorneys, and other involved parties.
7. Adaptability: Guardians must be adaptable and able to adjust to changing circumstances, as the needs and preferences of the adult under their care may change over time.

Despite these challenges, being a guardian can also be a rewarding experience, providing an opportunity to make a positive difference in the life of an adult in need. It's essential to approach guardianship with a commitment to the well-being of the adult under your care and a willingness to learn and adapt to new challenges.

Getting paid to be the legal guardian of an adult

In most cases, legal guardians of adults do not get paid for their services. Guardianship is typically viewed as a voluntary role, and many guardians are family members or close friends willing to take on the responsibility without compensation. However, in some states, guardians may be eligible for reimbursement for certain expenses, such as court fees, legal fees, and costs associated with the ward's care.

In some rare cases, a professional guardian may be appointed to serve as the legal guardian of an adult. Professional guardians are typically compensated for their services, and their fees may be paid by the ward's estate or through public funds in some cases. However, professional guardianship is generally reserved for patients where no suitable family members or friends are available to serve as guardians or where the ward's assets are substantial and require professional management.

We recommend you consult with an attorney to understand the specific laws and regulations governing guardianship in your state and the legal rights and responsibilities of guardians.