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July 8, 2022
When someone we care about is put at risk of abuse or fraud because they lose the ability to communicate or make thoughtful decisions, we want to do something to protect them. That’s where older adult guardianship comes into play.
Guardianships protect seniors by ensuring there is someone responsible and competent (an appointed guardian) to make decisions on their behalf.
When an adult is no longer capable of making rational decisions, they are left vulnerable to the dangers of elder abuse and exploitation.
In order to protect the senior’s well-being, the individual’s family or caregivers may choose to petition the court to appoint a guardian who can manage their affairs. If guardianship is granted, the guardian is given the authority to make legal, medical, and financial decisions on behalf of the individual.
The terms guardianship and conservatorship are often used interchangeably, and while both are appointed and held accountable by the court, there is one key difference between the two.
Guardians are responsible for an individual’s personal and medical needs, while a conservator oversees finances. While a guardian is typically a spouse or adult child, conservatorships can be held by anyone deemed to be of sound mind who can convince a court of the individual’s need for a conservator.
Pro Tip: In many cases, appointing a guardian should also be accompanied by adopting the power of attorney. To learn more, read our guide to power of attorney.
While each state’s process has its own nuances, the typical guardianship process involves the following steps:
To serve as a guardian, one must be 18 or older, mentally competent, and, in most cases, free of any criminal record. If you are applying to serve as the senior’s guardian, expect the court to run a criminal background check, review your financial responsibilities, and evaluate any potential conflicts of interest.
Once appointed as a guardian, individuals have a duty of care for their ward, meaning they must put the senior’s interest first. They are also in charge of making decisions for the individual, which may include:
The tasks required of a guardian are directly related to the senior’s needs and the areas in which the court finds they lack competence.
While senior guardianship has notable benefits, specifically the protection of vulnerable older adults, it’s a pathway that needs to be carefully selected, as it also has serious drawbacks.
Guardianship requires seniors to give up a significant portion of their freedom and independence, which, while may be necessary, can have considerable drawbacks. To avoid the negative effects of full guardianship on older adults, many states prohibit the use of guardianship until several less-restrictive alternatives have been attempted.
A representative payee has much less authority than a guardian, and the individual they are standing in for has not been legally declared incompetent. Like a guardian, a representative payee oversees something that belongs to the individual. However, guardians are in charge of almost everything for their wards, while a representative payee is responsible for receiving one specific Social Security or Supplemental Income on the senior’s behalf.
FYI: Representative payees can be a key component of your estate plan. To learn more, read our guide to estate planning.
One of the most simple alternatives to guardianship is the power of attorney. Guardianship and power of attorney provide seniors with similar levels of supervision. However, with power of attorney, a senior and their family select a person of their choice to serve as the older adult’s decision-making agent. If guardianship is selected, familIes may request a specific guardian, but ultimately the judge decides who serves as guardian. Sometimes families choose to pursue guardianship after their older loved one refuses to sign over their power of attorney.
Some states allow seniors to designate someone as a standby guardian in case they lose the ability to care for themselves. However, traditional guardianship differs from standby guardianship in that the senior must freely consent to the agreement, and the guardianship only takes effect if the senior becomes incapacitated.
Another alternative to guardianship is a trust that benefits the senior and names a trustworthy family, friend, or attorney (or yourself) as the trustee. While the trustee technically owns the transferred property, they are legally obligated to manage the trust assets responsibly for the beneficiary, which in this case, would be the senior. Seniors can also retain some autonomy by listing themselves as co-trustee. For example, you can make sure money is set aside and invested well. Then the senior you’re concerned about can be given an allowance to limit any risky financial behavior.
Pursuing guardianship for someone you care about is almost always a tough decision. Ask yourself the following questions to confirm that guardianship is the right path for the senior in question.
To learn more about elder law, be sure to check out our helpful guides:
Guardianship of seniors lasts until they can care for themselves or they die. Some states, however, require the renewal of guardianship annually.
To terminate legal guardianship, you must file a petition with the court asking the judge to do so.
It may be necessary to establish guardianship if an older adult is incapable of caring for themselves or making responsible decisions. A guardianship can also protect a senior who refuses to sign over their power of attorney but needs assistance making important choices and providing basic care.
