Over five million Americans suffer from dementia. This serious loss of brain function hinders the ability of seniors to care for themselves and make sound decisions. In these cases, a guardianship may be necessary to protect their quality of care, assets and legacy.
Guardianships for Seniors
Guardianship, also referred to as conservatorship, is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a guardian or custodian. There are two main types of guardianship: guardianship of the person and guardianship of the estate or property.
A guardian is typically a family member, friend, or fiduciary appointed by the court. A protected person can be a senior who is no longer able to make safe and sound decisions about his or her own person or property, or who is prone to fraud or undue external influence. Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:
- Choosing residence
- Providing informed consent to medical treatment
- Making end-of-life decisions
- Making property transactions
- Obtaining a driver’s license
- Owning, possessing, or carrying a firearm or other weapon
- Contracting or filing law suits
Right to Due Process
In order to safeguard the protected person’s right to due process, he or she is usually provided with notice and is entitled to attend all legal proceedings related to guardianship. In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.
Guardianship of the Person
Guardianship of the person grants authority over non-financial matters such as issues that impact the personal well-being of the protected person, including making important medical decisions. The appointed guardian is normally tasked with the following responsibilities
- Determining and maintaining residence
- Providing informed consent to and supervising medical treatment
- Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
- Making end-of-life decisions
- Maintaining the protected person’s autonomy as much as possible
Guardianship of the Estate or Property
Guardianship of the estate or property empowers the guardian to make important financial decisions on behalf of the protected person, including:
- Organizing, gathering and protecting assets
- Arranging appraisals of property
- Safeguarding property and assets from loss, whenever possible
- Managing income from assets
- Making appropriate payments
- Obtaining court approval prior to any sale of major assets
Our law firm routinely works with seniors and their loved ones to determine the best course of action, file the required paperwork and represent them in proceedings with the appropriate administrative agencies. We also work with the guardian to keep an up-to-date accounting of the estate.
Guardianship of Minors
Guardianships may also be used to protect the legal rights of a minor. In the event that a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed. Unlike an adoption, under a guardianship, parents may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.
A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have a steady income, suffers from an illness, or is incarcerated. In most instances, parental approval is sought prior to any legal proceedings.