What You Need to Know About Guardianship
Guardianship seems to be more in the public eye lately with the 2020 Netflix release of “I Care A Lot”—a film that portrays a corrupt private guardian who preys on the vulnerable people in her care. A 2018 documentary, “The Guardians” investigated the abuse of aging seniors in Las Vegas at the hands of the Nevada Guardianship and Family Court System. And for years, there has also been the “Free Britney” movement as fans protest Britney Spears limited personal agency under a court-ordered “conservatorship.” So what is guardianship and do Hollywood and media tabloids give us a fair picture of what it looks like in the real world?
Basically, if an adult is convincingly shown in court to be unable to manage their own affairs or to make decisions regarding themselves, their family, or their property, the court appoints a guardian to make decisions on their behalf. The person appointed a guardian is known as a “ward.” This arrangement is different than having an agent under a Power of Attorney. A Power of Attorney is a legal document drawn up in advance to communicate who you choose to act as your agent if you need help and in the case of incapacity. In guardianship proceedings, the court decides who will be your agent. Most often, guardianship petitions occur when an elderly adult suffers mental incapacity and has no existing Power of Attorney in place.
Anyone can request a guardianship. An attorney is generally retained to file for a hearing in the probate court of the county where the individual lives. Guardians can be family members, friends, or non-related professionals appointed by a judge, or even a non-profit agency. Two individuals can share the responsibility as co-guardians.
Responsibilities of a guardian include making decisions about where the individual will live, authorizing medical treatment, managing the individual's finances, and filing status reports and accountings with the court. The underlying premise is that the person no longer able to care for themselves will receive appropriate assistance. However, this arrangement harbors some real drawbacks. Guardianship procedures can be complicated and expensive, particularly if there is opposition from the ward or a family member. There is also a loss of basic rights including where to live, choice of caretaker, and any control over finances. Most importantly, there is always the risk that a guardian will fail to act in the best interest of the person they are supposed to serve.
Chicago attorney Charles P. Golbert, Esq. has served as a Public Guardian for much of his career. In a recent article in the NAELA Journal (National Association of Elder Law Attorney) he shared his concern that “The hard, day-to-day work of good and compassionate guardians is often mundane. It just doesn’t make for sexy movies. As a result, this often-extraordinary work is largely unknown.” Alongside his defense of guardianship, he also acknowledges the need for regulation, education, and ongoing adjustments to the system. Most of all, he urges turning to guardianship as a last resort: "We must never lose sight that guardianship is a profound intrusion on a person’s civil rights, liberty, and dignity. We must therefore ensure that guardianship is used only when necessary and when there are not less restrictive alternatives.”
The AARP (American Association of Retired Persons) has been at the forefront of efforts to improve guardianship statutes, practices, and standards through advocating for comprehensive and accountable guardianship reforms across the country. Alongside state legislators, judges, family advocates, and other stakeholders, they have advocated to:
Prevent the abuse and exploitation of older and vulnerable adults
Simplify caring across state lines for long-distance guardians
Improve training and establish standards for all guardians
Create programs and funding for public guardianship
Explore less restrictive guardianship alternatives, like supported decision making
In North Carolina, guardianship is considered to be an extreme solution to be applied only when “it is clear that a guardian will give the individual a fuller capacity for exercising his rights” (NC G.S. 35A-1253). The state preference is towards legal documents such as Power of Attorney, Health Care Power of Attorney, Comprehensive Crisis Planning, or adopting a Trust or Living Will that provide support for decision-making and assistance with finances rather than a court-appointed guardian. All of these alternatives involve individual choice—willingly assigning his or her rights to another person. Once an individual becomes unable to do so because of mental incapacity, these alternatives are no longer available.
Planning ahead for such eventualities serves everyone’s interests. Meet with a trusted attorney who can build a circle of security around you and your loved ones with a set of strong legal documents. Learn more at https://hillsboroughwills.com/contact