written by Kerry R. Peck and Quinn Gottlieb (3rd year Law Student at IIT Chicago-Kent College of Law)
Caring for a loved one who can no longer manage their own affairs is challenging. For some families, guardianship is an effective way to protect an incapacitated loved one’s interests. However, guardianship is an often mischaracterized area of law. This article aims to introduce you to the concept of legal guardianship so that you may better understand its purpose and applications.
What is Legal Guardianship?
When an individual is found totally lacking mental capacity due to age, medical issues, or disability, a court may appoint a legal “guardian” to make decisions on their behalf. This guardian is responsible for the disabled person or “ward’s” well-being and makes personal, medical, and financial decisions as needed. A guardian can be a person, an organization, or an institution.
State courts establish and oversee guardianship proceedings, with specific rules and language varying by jurisdiction. In most states, a formal competency hearing decides an individual's eligibility for guardianship. The court reviews evidence, including a medical report, and decides whether guardianship is appropriate for the individual’s needs and the extent to which the individual requires guided assistance.
As guardianship is court-appointed, guardians must act according to their specific court orders and state laws. The degree to which courts monitor guardianships will vary depending on the specific context; however, it is common for courts to require regular reports on the ward’s well-being. Because wards are often vulnerable members of society, state oversight and formal procedures exist to protect them. In fact, guardianship exists primarily to safeguard individuals from harm, abuse, exploitation, or neglect.
Generally, guardianship is meant to protect and provide for the ward's best interests. More specifically, guardians are expected to make decisions that conform as closely as possible to what the ward would have done or intended. The exact scope of a guardian’s responsibilities depends on the type of guardianship established by the court and state law.
Types of Guardianships
There are two types of guardianship: guardianship of the person and guardianship of the estate. Guardians of the person are typically responsible for day-to-day decision-making and care of the ward. Their duties may include managing medical decisions, housing, clothing, food, or other care-related tasks. Guardians of the estate are responsible for the ward’s financial matters and property. Their obligations may include managing property, bills, or other assets. The same person may be both guardian of the person and guardian of the estate.
There is a wide range of diversity within disabilities, and everyone’s needs may vary significantly. Most states accommodate this with limited guardianship or temporary guardianship. Under limited guardianship, the scope of the guardian's power is specifically outlined. The ward can retain some rights while assigning other responsibilities to their guardian for management. This type of guardianship is generally used when a ward only needs limited assistance. Alternatively, temporary guardianship is used when there is an urgent need to intervene in an individual’s life. Temporary guardianship is intended for emergencies or time-sensitive situations, such as when a ward’s safety, health, or assets due to financial exploitation are in danger. For example, if someone’s illness rapidly worsens, temporary guardianship might be established to make necessary medical decisions.
Regardless of what type of guardianship the court establishes, all guardians have legal obligations to their wards and must meet a standard of care. State law determines the exact scope of this standard, although those wanting to learn more about guardian standards should read The National Guardianship Association’s thorough, recognized, and up-to-date best practices manual. (Standards | National Guardianship Association).
Appointing a Guardian
Guardianship is a legal proceeding and typically begins with filing a petition with the court. The petition will list the potential ward and their potential guardian. Then, the court decides 1) whether guardianship is appropriate for the proposed ward and 2) whether the proposed guardian can fulfill their required duties. In situations like these, having an experienced attorney alongside you can help make the process less daunting.
It is possible that the judge will appoint a guardian ad litem (“GAL”), a qualified individual who will act as the court’s eyes and ears throughout court proceedings. GALs are usually attorneys. However, some states allow non-attorneys with specialized training to become GALs. These individuals ensure that the proposed ward understands their rights and has an advocate throughout the guardianship process. They may also investigate the circumstances surrounding the ward and report their findings to the court.
Sometimes, a court will appoint an organization or institution to serve as guardian. For example, if the ward does not have any friends or family who can serve as guardians, many states have an Office of the Public Guardian (or equivalent) that will be appointed for their care. Most banks have trust departments that can be appointed guardians of the estate and manage finances. Options for private guardianship are also available.
Overall, a variety of factors determine who is best suited to serve as someone’s guardian. The court will assess the specific context of the situation and appoint the guardian they deem best suited to fulfill the ward’s needs.
Additional Considerations
It is important to understand the costs associated with opening a guardianship case. Court costs and legal fees may accumulate rapidly, and other fees might not be anticipated, such as medical expenses for capacity evaluations. During a contested guardianship, things can get even more expensive. Consider also the privacy element of petitioning for guardianship. Public courtrooms create the possibility that financial, medical, or personal history could be publicly accessible. Some families might not be comfortable with making such information available. Understand that guardianship proceedings are court-based.
Every guardianship case is different. For some families, alternative forms of legal assistance meet their needs. For an individual who is still largely capable of managing their own affairs, legal guardianship may not be the answer. Consulting with an attorney to weigh your options will help you plan effectively.
Final Thoughts
The primary goal of legal guardianship is to ensure the safety and well-being of those who are unable to care for themselves. Today, guardianship helps incapacitated individuals live safely and comfortably. Understanding guardianship procedures can be overwhelming, but with the help of an experienced probate attorney, you can focus your attention on what matters most: taking care of your loved one.
The Law firm of Peck Ritchey, LLC, affiliated for many years with the Illinois Chapter of the Alzheimer’s Association, has recently been named the Legal Education Partner of the Association. Kerry Peck, Managing Partner of Peck Ritchey, LLC serves as Chair of the Illinois Supreme Court Commission on Elder Law and previously as President of the Chicago Bar Association. Mr. Peck is Co-Author of Alzheimer’s and the Law and Don’t Let Dementia Steal Everything, books which he wrote at the request of the American Bar Association. Kerry Peck served on the Association’s Board for many years and the Law Firm was honored last year by the Alzheimer’s Association. Peck Ritchey LLC is a one-stop shop for families navigating the devastating effects of a loved one with Alzheimer’s Disease.
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