Guardianship

The issue of a need for a guardian can come up in a variety of different ways. Sometimes the family might be worried that mother is leaving the stove on all the time, or she canТt properly write out checks to pay the bills, or maybe she bought a lot of magazines she did not need, or made large contributions to a charity she cannot afford. The issue can come up if mother is admitted to the hospital and the hospital is worried that she does not understand the medical treatment they want to perform. Often a nursing home declares that there must be a guardian appointed in order for her to be admitted. Sadly, sometimes one sibling is worried that another sibling is taking all of their motherТs money and they want to put a stop to it.

In each of these cases it is really important to try to determine what would be accomplished by seeking a guardian. Guardianship takes important rights away from a person that we all take for granted. Therefore, it should only be used as a last resort.

It is important to know exactly what a guardian is. The following definition and list of alternatives is taken from the web-site of the National Guardianship Association at www.guardianship.org. This web-site provides valuable, reliable and in-depth information about guardianship and should be consulted if you are considering it.

Definition: Guardianship, also, referred to as conservatorship, is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.

Alternatives to Guardianship

Alternatives to guardianship may include:

Х Representatives or substitute payees.

Х Case/care management.

Х Health care surrogacy.

Х Trusts.

Х Durable powers of attorney for property.

Х Durable powers of attorney for health care.

Х Living wills.

Х Community advocacy systems.

Х Joint checking accounts.

Х Community agencies/services.

Clearly defining why you think a guardian is needed will help determine which of the alternatives to guardianship listed above might work instead. For example, having a guardian will not ensure that mother will turn off the stove. This might more properly be addressed by finding a good care management program that would define needs and help bring in the kind of assistance needed for mom to safely conduct activities of daily living like cooking and self care.

Finding a representative payee for momТs Social Security check, or a money management program could assist mom to pay her bills and provide her counseling about not buying things or making contributions she cannot afford. Or, mom might be happy to have a trusted family member help with paying the bills. Do not overlook the fact that the real issue may be someone selling magazines or soliciting for a charity is taking unfair advantage of your mom and the family needs to tell them to stop it and let these people know that you will be watching. Community advocacy systems can help you if that is the real problem that needs to be solved.

Every area of the country is served by a state or local area agency on aging. The area agency will be able to provide more information about all the programs mentioned above. Contact information for them can be found in most local phone books under aging services and/or area agency on aging. Web based search engines like Google and Yahoo can locate area agencies on aging and other aging services by using those key words and the name of the applicable state and local area for the search. The Elder Care Locator wwwЕ.. can also find local aging programs and services nationwide.

A number of the other alternatives to guardianship listed above such as powers of attorney, trusts and health care surrogacy need to be drawn-up when the person is still able to make sound decisions. Everyone should consider these documents at any age, because one never knows when an accident or illness will strike and you could become unable to make your own critical life decisions. Most attorneys can create these documents or refer you to one who does.

Planning ahead and having these documents prepared is the best thing families can do to avoid heart-ache and head-ache in the future. These documents and decisions must be made with the full consent of the older adult, and ideally the full participation of all the other involved family members.

The possibility that a family member may be taking unfair advantage of a parent or older relative is often a reason the other family members go to court to seek a guardianship. If this is really happening, it is probably a matter for the police to investigate. It is always wrong and usually illegal. Some police agencies and prosecutors are very willing to take these cases, others are not unless what is happening is really serious and really evident.

Even in these cases, the problem you are trying to address is the action of the family member and that is what needs to be fixed.

Families also need to be very clear about the motives behind asking for a guardianship. When one family member wants a guardianship of a parent to gain control of the life and property of the parent the other family members usually object. If this matter goes to court and the parent is found to need a guardian the court often has no choice but to appoint an independent, professional guardian and the family can lose all control and involvement in the life choices, and property of the parent during the parentТs lifetime.

In the event that a hospital or nursing home tells you a guardian must be appointed for a parent, you have the right to ask very specific questions about why. The most basic question is: why do you believe my parent can not make informed decisions about his or her own care? The answer that they are worried about their legal liability, may or may not be a good reason to seek a guardian.

Most adults over age 65 have Medicare that helps pay the cost of their in-patient hospital care. As Medicare beneficiaries, they have rights and responsibilities related to hospital care. Every state has a Peer Review Organization (PRO) that answers questions about those rights and responsibilities and could provide more information about your options if the hospital is demanding a guardian and you donТt agree. Contact information for the PRO is often found in the Medicare notices provided at admission or by contactingЕЕ.

The question above also applies in the event a nursing home is demanding a guardian for admission to the facility, or at other times during your parentТs stay. Fortunately every state has a long term care ombudsman program that can help you sort out whether or not a guardian is needed. The ombudsman programs can be located through the Elder Care Locater and the state or local area agency on aging.

Finally, guardianship is sometime the right thing to do if none of the available alternatives solve the problems or meet the needs of your loved one. The following is a list of the duties of the guardian outlined on www.guardianship.org.

Guardianship of the Person

When the court appoints a guardian of the person, the guardian may have the following responsibilities:

Х Determine and monitor residence.

Х Consent to and monitor medical treatment.

Х Consent and monitor non-medical services such as education and counseling.

Х Consent and release of confidential information.

Х Make end-of-life decisions.

Х Act as representative payee.

Х Maximize independence in least restrictive manner.

Х Report to the court about the guardianship status at least annually.

Guardianship of the Estate or Property

УEstateФ is defined as real and personal property, tangible and intangible, and includes anything that may be the subject of ownership.

When the court appoints a guardian of the estate, the guardian is assigned the following responsibilities:

Х Marshall and protect assets.

Х Obtain appraisals of property.

Х Protect property and assets from loss.

Х Receive income for the estate.

Х Make appropriate disbursements.

Х Obtain court approval prior to selling any asset.

Х Report to the court on estate status.

If the court determines there is a need for a guardian and you choose to take on that role, it would be very useful to review the resources for guardians on the www.guardianship.org web site. The site also points you to local professional guardians and guardianship associations who might be able to provide training and education for family guardians. The court, usually called Probate Court, can also help you understand how to ask for the appointment of a guardian and some courts provide training and education for guardians.