As a result of people living longer, there is a higher incidence of dementia in the population. Physical limitations also impact the elder person’s ability to handle his/her own affairs. Young people may also be afflicted with mental incapacity and disability resulting from a severe accident or substance abuse. Preparation for the future possibility that, as a result of accident or disease, interventions and surrogate decision-making may become necessary in our lives.
Preparation includes executing Durable Powers of Attorney or Health Care Advance Directives. Oftentimes when mental incapacity becomes obvious, making it then too late to execute these relatively economical documents designed to keep the court out of one’s life, the only option remaining is costly court-intervention through the guardianship process.
Guardianship is a legally prescribed relationship in which the state gives one person (the guardian) the right and the duty to make decisions for, and act on behalf of, another person (the ward). Depending on the extent of authority given to the guardian, the ward may be reduced to the legal status of a child, losing the right to control almost every aspect of life.
The most significant right lost is probably the most basic civil liberty of all: the right of self-determination — the right to make choices about one’s life and to determine one’s integrity as an individual. This ability to make choices is curtailed because guardianship proceedings result in the loss of a great number of civil liberties which most people take for granted.
For example, the ward typically loses the right to manage his or her own finances, to write checks, to contract or sue and be sued, to make gifts, and generally to engage in financial transactions of any kind. More importantly, the ward loses the very basic right of freedom of association and freedom of travel, as the guardian is usually given the power to determine the ward’s place of residence and is thus empowered to place him or her in an institution of the guardian’s choice.
Because guardianship is a relatively extreme measure, the court process by which society intervenes in the individual’s life has procedures and safeguards built in to try and ensure that no other options exist for the alleged incapacitated person. The process is now much more adversarial. The alleged incapacitated person is represented by an attorney whose job it is to challenge the entire proceeding. There must be a finding that the alleged incapacitated person needs a guardian and that there are no measures available which would satisfy the needs of the individual and are less restrictive than a guardianship. We are also seeing more and more limited guardianships where the individual retains some rights and therefore some degree of control over his/her life.
The appointment of a substitute decision-maker for a person impaired by old age or an accident is a serious loss to the individual, which should be imposed with care. Elderly wards typically have led active, autonomous adult lives in which they contributed to society and accrued possessions and wealth. Depriving a person of independent choice by appointment of a guardian curtails long-held rights and expectations and should be done with caution and always with an eye toward a lesser restrictive alternative such as a durable power of attorney or a health care surrogate.
Guardianships for minors is also an area of our practice. In situations where a child receives more than $15,000 as an inheritance or proceeds from a lawsuit or life insurance policy, a guardianship for the child must be established to hold the funds until the child is 18.