Guardianship & Conservatorship
Ensure That Someone You Trust Will Make the Right Decisions for Your Health and Property
We all value our independence and the ability to make our own decisions, and the elderly are no exception. However, due to age related problems such as Alzheimer's disease, vascular dementia, or even due to serious injury resulting in traumatic brain injury - it sometimes becomes necessary for another responsible adult to assume the role of guardian or conservator.
Through a process of disability planning, the guardian aids the ward in estate administration, asset protection and general day-to-day care. Thus, guardianship is the legal relationship that is created between the adult in need of care (the ward) and the responsible party who provides this (the guardian).
How Is Guardianship Established?
Because guardianship represents a loss of freedom, courts take this mechanism very seriously. Guardianship is established by courts when other less restrictive methods of administration have been ruled out and when the ward has been found incompetent to make decisions. Simply misusing money or behaving recklessly does not automatically establish incompetence because it is possible that the adult could understand their actions. Incompetence rather implies the inability to make responsible decisions and can be a difficult matter to establish.
The law also considers the possibility of limited guardianship that applies only for certain types of decisions. A disability lawyer, with experience in guardianship cases, will be able to advise families who are concerned for a friend or loved one the best way to establish guardianship.
Who Can Act as a Guardian?
The law is quite flexible here in the sense that guardianship is open to any caring family member, friend, neighbor or even an agency or corporation. While still competent, a person can use a durable power of attorney to declare their intention to elect a specific person or entity as their guardian should they later become incapacitated. Absent such a document, the court considers those who already have intimate roles in the ward's life and assesses their ability to act as guardians.
A guardian may be eligible for aid and attendance benefits, but certain asset transfers can disqualify a guardian from receiving these benefits. It is always best to consult a disability lawyer in order to better understand these complex issues.
What Are the Responsibilities of a Guardian?
A guardian is responsible for important life decisions, estate planning and should act as a patient advocate in case of illness. An important part of disability planning, a health care directive is a document that appoints a competent adult to make health care decisions and grants the authority to act as a patient advocate.
Guardians are granted fairly wide responsibilities by courts to manage a ward's affairs and ensure asset protection, but they must record and report to the court how they manage the affairs of the ward. Proof of adequate living arrangements and health care is required of the guardian.
If you are worried about the competence of a loved one but aren't sure what your options are, Heritage Elder Law and Planning can help. With the small firm advantage of personal service and years of experience in disability planning and estate administration, Heritage Elder Law and Planning is here to offer you and your loved one's the peace of mind you need. With free strategy sessions and even home visits available, you can feel safe with the wisdom of Heritage Elder Law and Planning.