Every adult is assumed capable of making their own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions due to a mental disability, the court will appoint a substitute decision maker, often called a “guardian.” Some states use other terms, such as “conservator.” Guardianship is a legal relationship between a competent adult (the guardian) and a person who is incapacitated or no longer able to take care of their own affairs (the ward).
TIP: A guardianship consultation with our firm will explain how different courts and judges may interpret new changes in 2021 and 2023 related to the proposed ward’s legal rights.
What Does a Guardian Do?
The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a “conservator.”
Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision-making power over certain areas (a limited guardianship). In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian.
Guardianships and Incapacity
The standard under which a person is deemed to require a guardian differs from state to state. It may depend on whether a complete guardianship or a conservatorship over finances only is being sought. Generally, a person requires guardianship when they show a lack of capacity to make responsible decisions. A person can’t be declared incompetent simply because they make irresponsible or foolish decisions, only if they lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because they spend money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.
The Guardianship Process
In most states, anyone interested in the proposed ward’s well-being can request a guardianship. An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward’s county of residence. Protections for the proposed ward vary greatly by state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward’s presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person can’t afford a lawyer.
At the hearing, the court determines if the proposed ward is incapacitated and to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be responsible in their role.
Who Can Be a Guardian?
A guardian can be any competent adult — the ward’s spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case they ever need a guardian.
The guardian need not be a person — it can be a non-profit agency or a public or private corporation. If a person is found to be incapacitated and a suitable guardian can’t be found, courts in many states can appoint a public guardian, a publicly financed agency that serves this purpose. In naming someone to serve as a guardian, courts first consider those who play a significant role in the ward’s life — people who are both aware of and sensitive to the ward’s needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.
Guardianship Reporting Requirements
Courts often give guardians broad authority to manage the ward’s affairs. In addition to lacking the power to decide how money is spent or managed, where to live, and what medical care they should receive, wards also may not have the right to vote, marry or divorce, or carry a driver’s license. Guardians are expected to act in the ward’s best interests, but given the guardian’s often broad authority, there is the potential for abuse. For this reason, courts hold guardians accountable for their actions to ensure that they don’t take advantage of or neglect the ward.
The guardian of the property inventories the ward’s property, invests funds used for the ward’s support, and files regular, detailed reports with the court. A guardian of the property also must obtain court approval for certain financial transactions. Guardians must file an annual account of how they have handled the ward’s finances. In some states, guardians must also give an annual report on the ward’s status. Guardians must offer proof that they made adequate residential arrangements for the ward, provided sufficient health care and treatment services, and made available educational and training programs as needed. Guardians who can’t prove that they have adequately cared for the ward may be removed and replaced by another guardian.
Alternatives to Guardianship
Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and deemed ineffective. Less restrictive alternatives to consider before pursuing guardianship include:
Power of Attorney. A power of attorney grants legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact stands in the principal’s shoes and acts for them on financial, business, or other matters. In most cases, even when a power of attorney is immediately effective, the principal does not intend for it to be used unless and until they become incapacitated.
Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans’ Administration, Railroad Retirement, welfare, or other state or federal benefits or entitlement program payments on behalf of an individual.
Conservatorship. In some states, this proceeding can be voluntary. The person needing assistance with finances petitions the probate court to appoint a specific person (the conservator) to manage their financial affairs. The court must determine that the conservatee can’t manage their own financial affairs but still has the capacity to appoint a conservator to help them.
Revocable trust. A revocable or “living” trust can be set up to hold a senior’s assets, with a relative, friend, or financial institution serving as trustee. Alternatively, the senior can be a co-trustee of the trust with another individual who will take over the duties of trustee should the senior become incapacitated.
At McClelland Law Firm, we believe that limiting our practice areas provides the greatest value to our clients. To us, value means providing exceptional service and efficient processes for each of our practice areas.
We are committed to compassionate representations, especially as it relates to elder law. No one should feel pressured, controlled, or “talked down” to in any meeting. Every client deserves to be heard and understood.
McClelland Law Firm, P.A. is here to help you and your loved ones understand probate and trust administration, estate planning, Medicaid planning, crisis planning, guardianship, and elder law. Our Benton, Sherwood, and Searcy law offices welcome you to contact us and learn how we can help meet your elder law legal matters in White County, Pulaski County, Saline County, and throughout Arkansas.