Suppose an elderly family member becomes incapacitated and has prepared no instructions for next-of-kin or executors. These advance directives – which may include living wills, powers of attorney and health care proxies – are legal instructions that express a person’s wishes regarding financial and health care decisions in the event he or she becomes unable to make them. However, if incapacity occurs and there are no legally binding directives, is guardianship a viable option?

Guardianship for an adult is far different from guardianship of a minor child. For minor children, guardianship essentially involves parenting. Minor children require adult care until they reach a certain age. Moreover, minors do not enjoy various societal rights, such as the right to vote or the right to drive a car, until they “come of age.” Minor children do not give up any rights by virtue of guardianship.

By comparison, an adult, who is accustomed to making his or her own decisions, typically loses the right to vote, hold a driver’s license, marry and make a will (laws may vary) when placed under guardianship. The guardian, appointed by the court, becomes a decision-maker for the incapacitated person, and he or she has the power to make some, or all, financial and care decisions for that person. Consequently, guardianship for an adult is considered a serious intervention.

Unlike a power of attorney, which must be set up before the individual becomes incapacitated, guardianship for an adult usually cannot be put into effect until after a clear need arises. At a minimum, a court hearing and examination by a physician and/or psychologist to determine incompetence is usually required. The person for whom guardianship has been petitioned (i.e., the ward) must be informed of his or her rights and notified that a court hearing has been scheduled. Proposed wards generally have the right to retain an attorney and to object to the petition for guardianship, even if incapacity prevents them from attending the hearing.

Gray areas

Confusion and eccentricity do not necessarily indicate incapacity. For example, an elderly parent may appear to be spending money frivolously, but that alone may not indicate an inability to manage his or her affairs. Also, consider what would happen if the court appoints a guardian for someone in a coma who later comes out of the comatose state. For these and other reasons, guardianship for an adult is generally considered a course of last resort in the absence of advance directives.

Time is of the essence

The process of appointing a guardian may consume critical time, especially when important financial decisions must be made (such as those involved in running a family business). This underscores the need for early estate planning and putting advance directives – living wills, powers of attorney and health care proxies – in place while mental faculties are sound and appropriate contingencies can be formulated.

Copyright © 2006 Liberty Publishing, Inc. All rights reserved.