What is guardianship?

Guardianship is a legal relationship whereby the Probate Court gives one person (the guardian) the power to make all personal decisions for another (the ward). A Probate Court may appoint a guardian when it determines that an individual is unable to care for himself or herself due to mental illness, developmental disability or physical incapacity.

When is guardianship appropriate?

Guardianship is appropriate when impaired judgment or capacity poses a major threat to a person’s welfare. A medical evaluation by a licensed physician is necessary to establish the proposed ward’s condition. However, only a court can determine the need for a guardian.

Alternatives to Guardianship

While full guardianship may be appropriate for some individuals, it is more often too overreaching as it removes all rights and decision-making capacity from those who do have the ability to think and act for themselves. Many alternatives to guardianship exist to give families less intrusive options to assist their loved ones. Alternatives to guardianship include power of attorney, trusts, representative or protective payee, conservatorship, health care proxies and social support services.

Power of Attorney

A power of attorney is when a person (the principal) gives another (the attorney-in-fact or agent) the power and right to make decisions and take action on the principal’s behalf. State law governs the types, powers and duties available. Through a power of attorney, you can authorize your agent to act in health care, financial and business decisions. You can tailor one or more powers of attorney to fit your needs, including a durable power of attorney, which goes into effect only when the principal loses capacity.

You do not need a court action to use a power of attorney, unlike a guardianship. To create a power of attorney we suggest you seek your lawyer’s help so you get the exact documents you need rather than using forms readily available online.

Trusts

A “living trust” is a revocable trust you can set up during your life to control and manage your property and affairs. One major attraction of living trusts is disability planning. You can serve as trustee or co-trustee, but if you become incapacitated, your trust terms provide for a successor trustee, or your co-trustee serves alone. Once again, no court action needed to enact, there is a seamless transition and with your privacy maintained.

Representative or Protective Payee

You can name a person to manage benefits received by someone lacking capacity. The representative or protective payee handles benefit payments from state and federal public aid programs, Social Security, Railroad Retirement and the Veterans’ Administration. The role is similar to an attorney-in-fact, but powers are limited to handling benefits from a specific program.

Conservatorship

Conservatorship or guardianship of the estate is limited to managing a person’s property and finances. It is a court proceeding, and it can be voluntary or involuntary. If you know or expect you will need help, as the “conservatee,” you can ask the court to appoint someone you nominate as your “conservator.” Think about being proactive when it comes to future abilities and needs, or those of loved ones or family members. Most people do not want to lose control of their personal lives or property, and would rather have a say in what will happen to them should they lose the ability to speak and act for themselves.

Heath Care Proxy

A Health Care Proxy is an instrument (or document) that allows a patient to appoint an agent to make health care decisions in the event that the primary individual is incapable of executing such decisions. Once drafted, the document outlines how the primary individual continues to be allowed to make health care decisions as long as they are still competent to do so. Depending on the legal jurisdiction, health care proxies may or may not be mandatory. Regardless, they allow a patient’s wishes to be followed even when he or she is incapable of communicating them. In many jurisdictions, a health care proxy is closely related to a “springing” health care power of attorney; with many practitioners using these two terms interchangeably.

Social Support Programs and Services

Please remember support programs and services for someone who may have many abilities. Their needs may be met without turning to formal legal means. Lining up extra help such as bill paying services, financial counseling and in-home support can keep a person independent. Your loved one may be reluctant to accepting help such as housekeeping, meal service or a health aide. Try to explain they may prefer accepting some help rather than lose control.

Please contact SCIL if you have questions at 417.886.1188 or if you would like a list of attorneys in the Springfield area that may assist you with these legal processes.