Often, the term guardianship congers images of a minor child in the care of a designated adult family member or friend. However, it also describes the legal process to obtain legal rights over disabled or aging adults who have insufficient physical and/or cognitive capacity to make decisions. Guardianship over an adult is typically needed in the absence of a Power of Attorney and/or Advanced Health Care Directive. However, in some cases our loved ones may have these documents in place, but circumstances require that we go a step further to protect them from danger and designing persons.
Guardianship begins with obtaining a physician’s affidavit. This document will verify details about the person with an alleged disability’s medical condition, need for assistance with activities of daily living, ability to consent to the legal proceeding, and susceptibility to fraud and deceit. The affidavit is a form document that a doctor completes attesting to the patient’s physical ability and mental acuity.
This moment in time is difficult for an aging parent who may not see their decline. Often, a trigger for adult children to begin guardianship consideration is an aging parent’s determination to continue driving when they are in no condition to operate a vehicle safely, or discovery that strangers are taking advantage of them. There are other determiners, but all of them point to a person’s loss of control and independence over their lives.
Notifications to the person with an alleged disability and their family relatives are a legal requirement. All family members and other interested parties with the legal right to know about the petition for guardianship must receive notification of the petition.
A complete petition for guardianship does not automatically make you a guardian. Once filed, the Court appoints an attorney to represent the best interest of the person with an alleged disability to investigate several factors and talk with the person with an alleged disability, their care providers and relatives. That attorney then reports to the Court who decides whether guardianship is in the best interest of the person with the alleged disability. If the petition is contested, or if a cross-petition is filed by another person, the Court will schedule the matter for trial. People seeking to be appointed guardian of another adult must submit to a criminal background check, provide personal references, and affirm factors relative to the Court’s consideration. Once appointed, the guardian continues to be subject to jurisdiction of the Court and the guardian must file regular reports to the Court regarding the person with a disability’s medical condition, and management of their financial affairs.
Less restrictive alternatives to guardianships exist. Adults wishing to avoid the necessity of a guardianship should have an up-to-date, thorough and specific Power of Attorney and Advanced Health Care Directive. A Power of Attorney allows a mentally sound person to appoint a person or people to make legal financial decisions for them should they be unable to do so for themselves. An Advanced Health Care Directive appoints a person or people to make medical decisions and allows the person to designate end-of-life wishes through a living will and anatomical gift (organ donation) wishes.
Naming these representatives is a personal decision that does not require court involvement when in place proactively. They are more cost-effective than the guardianship process and permit the person creating the documents to express their wishes. In the absence of these documents, or if the documents are not up to date, thorough and specific, it may well be guardianship is the best solution for a loved one struggling with failing capacity.
At DiPietro Law, our initial consultation process is designed to help families determine which route may be the best option given the circumstances. We are equipped to help families make proactive choices to avoid guardianship and proceed with guardianship matters if it is necessary.