Guardianship and Conservatorship Law
When you have a loved one with a significant disability or an age-related cognitive decline, you do the best you can to help and take care of them. Sometimes, that may mean making decisions for them if they're unable to do so for themselves.
But when it comes to certain legal and medical issues, you don't have an automatic right to make those choices on someone else's behalf unless they are your minor children. If you have a loved one in your life who needs help making medical or end-of-life plans, you may want to consider getting guardianship of them.
Guardianship provides a "guardian" with the legal rights to make most decisions for a "ward." Typically, it involves making medical and legal decisions, and some minor financial decisions. In many states, major financial responsibilities are often handled through conservatorship, though the guardian and the conservator can be the same person.
When an adult has a mental impairment that makes it difficult, or impossible, for them to make sound medical and legal choices for themselves, they may require a guardian who can make those decisions for them. Everything that guardians do for their wards must be done in the ward's best interest. Guardians could potentially face an audit from the court where they have to justify expenditures and decisions they've made for their ward, so it's imperative to prioritize the ward's well-being.
Guardians have to be appointed through the court. When a person thinks they may need to become someone's guardian, like a mentally disabled adult child, a sibling who has recently been in a disabling accident, or a parent showing signs of cognitive decline, they need to petition the court for a guardianship hearing.
At the hearing, the potential guardian and potential ward will need to appear before a judge who will decide if the guardianship is necessary. If the ward is unable to appear in court because of their condition, the hearing can take place without their presence.
The guardian will need to produce evidence of the ward's incapacitation, such as letters from doctors, social workers, and people who know the guardian and the ward. Medical records will be helpful as well.
The judge will ask both parties questions to determine if the ward is legally incapacitated enough to require a guardian, if the ward is capable of answering the questions. The guardian will be required to answer questions and explain why they would be fit for the role they're seeking.
In some cases, the ward may challenge the guardianship, which they are allowed to do. Guardianships don't have to be permanent. In some cases, such as for a temporary incapacity, guardianships can be reversed or revoked through another petition and hearing in the court. An adult who has been placed in a medically-induced coma after a car accident, for example, may require a guardian to make their medical decisions only until the ward is conscious and well enough to make their own choices again.
If you have a loved one who is fully incapacitated, the need for a guardian may be obvious. But what if the potential ward's case isn't as severe?
In some cases, guardianship may be suggested by a professional who knows the ward well, like a physician or counselor. In other cases, you may notice for yourself that your loved one needs extra help; if they often seem confused or unreasonably forgetful, for example, it may be hard or impossible for them to make rational choices. They need to be able to understand complex decisions, the reasons for them, and their consequences.
If you suspect an adult loved one might not be able to fully recognize their circumstances when making medical or legal decisions, you may want to consider stepping in.
It's a good idea for aging parents who still have full cognitive capacity to have conversations with their adult children about their preferences for medical decisions and the end-of-life care they may need as they get older. These conversations may be uncomfortable, but they will help guide the children to fulfill their parents' wishes if the children ever become their parents' guardians.