What Is a Guardian?

family A guardianship, also known as a conservatorship, is a legal process by which an individual who is deemed unable to care for themselves has their rights are given over to a court-appointed individual.

Officially, guardianship only occurs when either of two criteria are met. If a person is determined to be unable to make and communicate sound decisions with regard to their health and property, or if a person can be shown to be highly susceptible to fraud or undue influence, a guardian may be appointed by the court.  

Guardianship is a serious process that can severely affect the subject’s life. Unlike in other procedures that allow one person to care for another, guardianship takes the rights of an individual away from them and awards full control of their life to another person. The extent of that power allows the guardian to make decisions about:

• Where the individual lives.
• Whether the individual may seek medical attention and what kind of medical treatment may be administered.
• How the individual arranges their end-of-life affairs including wills and do not resuscitate orders.
• The individual’s ability to possess a driver’s license
• The management, purchase, or sale of the individual’s property
• Ownership or possession of any firearms or weapons for the individual
• Signing contracts or filing lawsuits in the individual’s name
• Marrying or attempting to conceive
• Voting

This radical shift in power dynamics is not allowed to occur on a whim. Before a guardianship can be approved, there are a number of steps that must be observed. First, the individual must be given notice of the proceedings including all pertinent details that would allow the individual to attend.

Next, the witness must attend all the hearings and proceedings with a legal representative to advocate for them. The individual will have opportunities to confront and cross-examine all witnesses produced to convince the court of the individual’s inability to function alone. The individual may appeal the decision, present counter-evidence, and even request a jury trial.

Key Takeaways

• Guardianship is a legal process that allows an individual, designated as the guardian or conservator, to take control of the life of an individual who no longer has the capacity to safely decide their own affairs.
• Guardianship removes the rights of the individual in order to allow the guardian to manage their finances, healthcare needs, and other decisions about how the guardian lives their life.
• Though guardianship can be helpful to an individual who can no longer manage their own life or meet their own needs, the opportunity for abuse is far greater than simply appointing a trusted friend or family member to have durable power of attorney. 
• If you want to avoid the potential abuses of guardianship and establish a durable power of attorney, an experienced Trusts & Estates attorney may be able to improve the outcome of your case by utilizing experience and expert knowledge.

Guardians, Trusts, and Estates

While the guardianship system is intended to help individuals who are unable to care for themselves, they are open to a number of abuses. Since the guardianship gives so much power to the individual appointed as a guardian, the individual being “guarded” can find themselves powerless to resist the abuses of a guardian. 

While some court-appointed guardians are family or friends of the individual, there are also individuals who are known as “professional guardians.” A professional guardian is an unaffiliated third-party who offers themselves as a guardian to elders who are found by the court to need guardianship. 

While professional guardians can be individuals who feel a strong calling to help those who have been found unable to help themselves, stories of private guardians exploiting and abusing their wards have made headlines in recent years. Due to the complete access and control of their wards’ finances, guardians are in an unusually advantageous position to enrich themselves unlawfully.

Since their ward has been ruled incapable of advocating for themselves, it is extremely difficult to seek justice against an abusive guardian. The most effective way to fight against a guardianship is to prevent it. 

The assignment of a guardian is a reactive decision. Once an individual is believed to be incapable, a family member, friend, or professional guardian brings a guardianship case before the court. However, if the individual is proactive in planning their estate, they can implement a contingency plan rather than be assigned to a guardian. This contingency is called durable power of attorney.

Durable power of attorney establishes a legal plan for who should look after an individual if they should become incapacitated. This incapacitation can extend to an individual who is unable to conduct their own affairs. By implementing a durable power of attorney, an individual can ensure their wishes are respected by an agent who is strictly bound by the power of attorney agreement.

Bottom Line

If you are looking to establish a durable power of attorney to prevent yourself from becoming a victim of the guardianship system, you will need a trusts & estates attorney. Guardianship is a system that removes your rights and places you in a position to be taken advantage of or abused. An experienced trusts & estates attorney can write an airtight power of attorney that can take effect instead of allowing the court to appoint a potentially harmful guardian to control your life.