Guardianship overview

Guardianship overview

older man looking at camera
Guardianship Overview

Why do courts appoint guardians?

A court may find that a person needs a guardian because

  • They are not able to make critical decisions about their personal and/or financial affairs on their own;
  • there are no alternative arrangements in place (such as a power of attorney for finances or a health care advance directive); and
  • without court intervention the person or their resources would be at risk of substantial harm.

Before appointing a guardian for someone, a court must determine whether the person meets the legal definition of incapacity based on medical, psychological and other evidence about the individual’s decision-making ability.  There are many conditions that may impair a person’s decision-making ability.  The most common conditions are:

  • dementia
  • intellectual disability
  • mental illness
  • head injury
  • substance use disorder.

The fact that a person has one of these conditions does not by itself mean they need a guardian.  Even people with significant cognitive challenges may be able to make decisions for themselves, especially with technological assistance and support from people they trust.

What are the types of guardianship?

A guardian of the person makes personal decisions for the person subject to guardianship, e.g. choosing health care and treatment, deciding where to live, and deciding who visits. 

A guardian of the property makes financial decisions, such as decisions about money, investments, real estate, debt, and making gifts.

A court may grant a guardian authority to make both personal and financial decisions.

In a plenary or “full” guardianship, the guardian can make virtually all decisions for an individual, but in a limited guardianship, the guardian only has certain decision-making powers specified in the court order.

Who serves as guardians?

Most guardians are family members or others close to the individual. 

The remainder are public or private entities appointed by the court.

  • Private, non-family guardians include professional guardians who have a background in law, social work, or financial services, among other fields.  Generally private guardians receive fees paid out of the assets of the person subject to guardianship.  If there are no assets, there may be a state funding source or the guardian volunteers his or her services. Private guardians may be individuals, or non-profit or for-profit agencies.
  • Public guardians are appointed by the court, typically when no one else is willing or able to act as guardian.  Sometimes a state or locality has a public guardianship program, and sometimes these “guardians of last resort” are individuals or agencies the court identifies.

What are some alternatives to guardianship?

Guardianship results in the removal of an individual’s legal rights and restricts their rights to make their own decisions.  For that reason, state laws recognize that it should be a last resort.  Guardianship should be limited to situations where there are no other reasonable ways to meet the individuals’ needs.

Individuals may avoid guardianship by planning ahead for illness or incapacity.  Some ways to avoid guardianship include creating a power of attorney for finances, creating a power of attorney for health care (sometimes called a “health care proxy” or “advance directive”), setting up a trust and creating a supported decision-making agreement.  In some cases, a government agency may appoint a fiduciary, such as a Social Security representative payee, to manage the person’s government benefits – and especially if there is no other income, the result may be that a guardian or conservator is not be necessary.

What is the relationship between guardianship and elder abuse?

Guardianship is a double-edged sword.

For an older adult who has experienced some form of elder abuse, guardianship can be a critical means to preventing further mistreatment. A person or agency that detects abuse may petition the court seeking appointment of a guardian. The court could then take appropriate steps to determine whether the individual meets the standard for appointment of a guardian and, if so, to appoint a guardian who can take protective measures. These actions might include moving the adult to a safe environment, locking down bank accounts, and providing medical care.

On the other hand, at times guardians can abuse their authority by financially exploiting, neglecting, or otherwise mistreating those they have been appointed to serve.  This is why it is very important for courts to actively monitor guardians’ conduct.  If a court finds that a guardian abused their authority, the court could remove the guardian, sanction the guardian, refer the guardian for prosecution, or take other measures.

Guardians also have a role in preventing elder abuse.  Guardians should be vigilant for signs of abuse. Many states identify guardians as mandated reporters.

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