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Understanding Guardianship in the Lens of Older Adults: What it does and is it avoidable?

 

Simply put, a guardian is a person who is legally in a position for decision-making on behalf of another individual. A guardian is responsible for:

  • Financial decisions
  • Health care decisions
  • Day to day decisions- such as school, housing 
  • Overall well being of the individual 
  • In some states- adult foster care may be available to provide residency as well

 

It is a different experience to establish guardianship for an older adult, versus a guardian for care of the child. In a situation of guardianship of an adult, a person is losing their legal rights to make their own decisions. Compared to the situation of a child guardianship where a child’s parents have lost their parental rights or are unavailable to take care of the child. In this case, a family member or court appointed guardian may step in until the child turns 18. While guardianship of a child takes place in family court or dependency court, guardianship usually occurs in probate court.

 

Guardianship Later in Life

 

When guardianship occurs later in life it is typically due to:

  • An adult with special needs (developmental disabilities)
  • Significant mental health issues
  • An older adult with a cognitive impairment

 

It is important to note that not everyone with a developmental disability or a mental illness require a guardian, just as a cognitive impairment diagnosis does not automatically make someone in need of a guardian. However, when these conditions impact the individual’s ability to keep themselves safe, a guardian may be necessary.

 

A guardian is not needed until the individual is lacking capacity for decision-making or is struggling to maintain their day to day needs and well being. 

 

Signs that a person may need guardianship include:

  • Inability to manage activities of daily living (bathing, dressing, eating)
  • Inability to manage finances or making poor financial decisions (that put a person’s safety at risk)
  • Missing medical appointments or not following through with treatments, without understanding the negative impacts of this
  • Making unsafe decisions or reckless

 

Just as if there is suspicion of child abuse or neglect, and child protective services may become involved, there is an adult protective service agency. This agency will be informed of any cases of elder abuse. If abuse is identified, the guardianship process may begin. Or, a family member or involved human service individual (mandated reporter), may petition the courts to become guardian of the person in order to increase the support. 

 

Why Get Legal guardianship?

 

If advanced legal planning has not been completed, a caregiver or family member may be in a difficult position trying to support their loved one and plan for future needs. They will need to acquire legal guardianship in order to manage their loved one’s finances and medical care. The legal guardian will also be able to make decisions on care options, including residential care transitions.

 

How to Become a Guardian

 

The guardianship process is not an easy task, and reflects the challenges that the guardian may experience once in the role. The guardian has the role of supporting the individual in all of their day to day needs as well as navigating family dynamics and working with health providers. In some cases, financial support may be given to the appointed individual.

 

It’s clear that the legal guardian holds a lot of power in an individual’s life. They should be a trusted individual who takes their role seriously and seeks to focus on the individual’s well being.

 

Becoming the guardian for another individual is not a simple process, and it’s important to note that guardianship laws may be different in different states. Your local government webpage can typically offer insight into the local laws. It involves lawyers, physicians and courts. Iin general, the steps are: 

  • Connect with an attorney who will assist in filling out necessary paperwork
  • Work with the individual’s physician will need to provide supporting documentation of the person’s incapacity
  • Notify both the individual and other involved family members that guardianship is being sought

 

If after that whole process, the person is deemed to not have competency, there will be a court order for a guardian.

 

The hope is always for a person to be able to maintain their autonomy and make decisions without legally appointing a representative, and therefore every step of the process must be taken seriously. Having a guardian is a big deal and can at times put the individual in a vulnerable position. It is so important that his or her capacity and ability to make their own decisions is thoroughly assessed by a team of professionals.

 

Because of the court process and need for thorough assessment, guardianship cases are long processes- several months to a year. It can make it difficult to implement needed care options or supports while the guardianship process is implemented. 

 

After a guardianship is appointed, the guardian is overseen by family court in order to ensure they are fulfilling their duties.  

 

What About a Conservator?

 

Conservatorship is a word often heard along with guardianship. In many cases, a guardian and conservator are appointed at the same time, and can even be the same person. Essentially, a conservator is the guardian of the estate of the individual in need. They focus on the individual’s financial affairs.

 

Can We Avoid Needing a Guardian?

 

Luckily, there is a way to avoid needing a guardian for an older adult who develops a cognitive impairment. Prior to diagnosis, an individual can appoint a durable power of attorney. This document allows the person to choose their own representative in the even they are ever incapacitated. They can choose when this document will become activated- either immediately or upon loss of competency. The power of attorney can also suggest back up representatives and put restrictions on what decisions can be made, as well. At the same time as signing a power of attorney, a person may outline what their end of life wishes are. This might include things like:

  • Treatment of serious illness in the case of a dementia diagnosis
  • Resuscitation
  • Use of life sustaining equipment such as ventilators and feeding tubes

 

Preparing a power of attorney in advance can provide the individual with more control over their future, and create ease for their representative. However, if guardianship appears to be necessary the first step is to meet with a trusted attorney.

 

Guardianship can be a necessary, yet challenging transition for both the individual and the family member involved. It can be emotional for the individual to lose their legal rights to their own decision making. Caregivers may find it helpful to find small ways to allow their loved one to be involved in their care planning, as much as they are able.

 

Laurel McLaughlin

A Certified Dementia Practitioner and expert in Gerontology with over a decade of experience in elder care, including home care and senior living.

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