Guardianship is the appointment by a court of a person or entity to make personal and/or property decisions for an individual whom the court finds cannot make decisions for themselves. These may be decisions about an individual’s property, personal affairs, or both. Guardians can be family members, friends, professionals working at for-profit and non-profit entities, and lawyers, among others. State courts, often specialized courts that may be called probate courts, surrogates courts, or orphan’s courts, appoint guardians.
Guardians are fiduciaries. Fiduciaries are people or organizations that act on behalf of someone else and have high duties of trust, care, honesty and confidentiality. When making decisions for the person they serve, fiduciaries must put the interests of that person above their own interests. Other types of fiduciaries include agents under a power of attorney, trustees, Social Security representative payees and VA fiduciaries. Guardians have a dual duty – to the individual for whom they are appointed and to the court.
Guardians are appointed when a court determines that an individual is at risk because they cannot make decisions for themselves and there is no less restrictive way to meet the individual’s needs. Guardianship may remove a broad spectrum of rights from the individual.
State law governs many aspects of guardianship, including the process for appointing the guardian, protections for the person subject to guardianship, and the duties of guardians once appointed. Guardians should use person-centered planning to guide actions and change in the person’s life.
For more information about guardianship and alternatives, you may find the following websites helpful:
American Bar Association Commission on Law and Aging – https://www.americanbar.org/groups/law_aging/resources/guardianship_law_practice/
The American Bar Association Commission on Law and Aging has many original resources on guardianship and supported decision-making. These include statutory charts analyzing many characteristics of state guardianship law and a wide array of reports and handbooks on guardianship law, policy and practice.
Center for Public Representation – https://supporteddecisions.org
The Center for Public Representation has a website that includes many resources about supported decision-making at the national and state level.
National Center for State Courts/Center for Elders and the Courts – https://www.eldersandcourts.org/guardianship
The National Center for State Courts has a website dedicated to aging-related issues involving state courts. This site includes many resources on guardianship with a particular emphasis on the role of the courts, including court data, the judicial process for the appointment of guardians, and guardianship monitoring.
National Center on Elder Abuse – https://ncea.acl.gov/
The National Center on Elder Abuse features materials on all aspects of elder abuse. The Center has publications that focus specifically on guardianship at https://ncea.acl.gov/Resources/Publications.aspx#guard_conserve, including an Issue Brief entitled How the COVID-19 Pandemic Changed Adult Guardianship: Lessons Learned and a fact sheet on the same topic.
National Center on Law and Elder Rights - https://ncler.acl.gov/Legal-Training/Guardianship.aspx
The National Center on Law and Elder Rights website includes legal training materials on guardianship, alternatives to guardianship, and supported decision-making.
National Guardianship Association – https://www.guardianship.org/
The National Guardianship Association is a membership organization. Its stated mission is “to advance the nationally recognized standard of excellence in guardianship.” The website includes comprehensive information on guardianship, standards for guardian conduct, ethical principles, and information about the national organization and its state affiliates.
National Guardianship Network – https://www.naela.org/ngn_public
The National Guardianship Network is a collaborative group of national organizations dedicated to effective adult guardianship law and practice. Its website links to many sources of information on guardianship reform and provides information on state-level Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS).
National Resource Center for Supported Decision-Making - http://www.supporteddecisionmaking.org/
The National Resource Center for Supported Decision-Making website compiles educational tools, webinars, news and state-by-state information on supported decision-making.
Syracuse University College of Law – http://law.syr.edu/academics/conferences-symposia/the-fourth-national-guardianship-summit-autonomy-and-accountability
This website include materials related to the Fourth National Guardianship Summit held in May of 2021, including background papers, issue briefs and Summit recommendations.
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