Understanding Guardianship for Older Adults
One day, you may be involved in guardianship proceedings for an elderly parent or relative. Here's an overview of what guardianship means today, how the court evaluates the adult, and what you need to know.
Guardianship promises to be a huge issue facing baby boomers in the years ahead as they watch over elderly parents—often from a distance—and wonder if the time has come to take control of mom or dad's affairs before something terrible happens.
In years past, the effort to obtain guardianship of an incapacitated adult was often an ugly, acrimonious process that stripped older adults of virtually all of their rights. If a court determined that an older person was confused and couldn't pay their bills or make independent decisions, a guardian was appointed to handle all of that person's affairs and make decisions for them.
Guardianship of the person gives the guardian the right to make decisions concerning living arrangements and health care. Guardianship of the estate, also called conservatorship, gives the guardian (conservator) the right to manage the person's property.
The all-or-nothing nature of guardianship has often led to fierce fights among family members and caregivers, not to mention the indignities suffered by older people who want to retain some semblance of autonomy.
To address these tense proceedings, the American Bar Association, Commission on Law and Aging, American Psychological Association, and National College of Probate Judges have collaborated to produce a handbook, Judicial Determination of Capacity of Older Adults, which lends nuance to the definition of capacity.
For one thing, capacity may be task-specific, not global. A person who can't remember to pay his bills may still be able to make other vital decisions.
Additionally, capacity may fluctuate. A person in a coma or other temporary condition may need a guardian for a while, then eventually resume full functioning upon recovery.
Capacity may also be situational and contextual. A familiar and comfortable home environment may enhance someone's capacity, while a new and unfamiliar setting may undermine functional capacity.
The handbook balances the benefits of guardianship with the rights and well-being of the person in question, crafting limited guardianship when appropriate and identifying less restrictive alternatives to guardianship.
If you are considering guardianship of an adult relative, you should educate yourself about these guidelines and consider the extent of the guardianship necessary.
Six Areas of Capacity
Courts that follow the guidelines will be gathering information in six areas.
Medical Condition
What is the cause of the person's diminished capacity, and is it likely to improve, stay the same, or get worse?
Cognition
In what areas is the individual's decision-making and thinking impaired, and to what extent? Can the person understand, communicate, and remember?
Everyday Functioning
What can the person do in the way of everyday activities? These include:
- Care of self. Bathing, dressing, and meal preparation
- Financial. Cash management, bill paying, and investment decisions
- Medical. Healthcare decisions, medication management, and ability to get help in an emergency
- Home and Community Life. Ability to maintain a clean and safe home, be left alone, drive or use public transportation, use the telephone, and avoid environmental dangers, such as the stove and poisons
- Civil or Legal. Retain legal counsel, vote, and make decisions about legal documents.
Values and Preferences
Are the person's choices consistent with long-held patterns, or has there been a sudden, unexplained shift? The guidelines note that eccentricity does not necessarily indicate diminished capacity.
Risk of Harm & Level of Supervision
What level of supervision is needed? How severe is the risk of harm to the individual?
Means to Enhance Functioning
What treatments might improve the individual's level of functioning? Consider whether education, training, rehabilitation, occupational therapy, or assistive devices might help.
Clinical Assessments
Courts are encouraged to order assessments by various clinicians, including doctors, psychologists, and social workers, to determine if guardianship is necessary.
Page 25 of the handbook provides a form clinicians may use to evaluate a person's need for guardianship. For each area of capacity, the clinician checks one of four boxes:
- Independent
- Needs support
- Needs assistance
- Total care
Financial advisors are not included among these clinicians, but if the elderly adult has a financial advisor, they can offer information arising from their longstanding relationship. They can also convey their concerns to you and other family members or healthcare professionals who can incorporate them into their assessments.
Because financial issues are so important and vulnerable to slips in cognition, the handbook includes several questions that help determine whether or not a person can still manage his financial affairs.
- Protect and spend small amounts of cash
- Manage and use checks
- Give gifts and donations
- Make or modify a will
- Buy or sell real property
- Deposit, withdraw, dispose, or invest monetary assets
- Establish and use credit
- Pay, settle, prosecute, or contest any claim
- Enter into a contract, financial commitment, or lease arrangement
- Continue or participate in the operation of a business
- Resist exploitation, coercion, undue influence
After gathering information in all areas of capacity, the court fills out a guardianship order stating that the person is either incapacitated, not incapacitated, or partially incapacitated.
If partially incapacitated, the court lists the retained capacities in the following five areas: care of self, financial decisions, health care decisions, living in the home and community, and other civil matters.
Again, focusing on the financial area, it may be noted that a person is independent when handling small amounts of cash but requires total care when buying or selling property. The guardianship plan would reflect these distinctions and give the guardian or conservator the appropriate powers.
Crafting a Guardianship Plan: Values & Financial Decisions
When crafting a guardianship plan, an elderly person's relationship with her financial advisor does come into play.
The new model gives the person—called a ward in legal terms—an opportunity to say that they would like to work with a particular advisor and to state specific preferences about managing their money. The guardian can use the guidelines to accommodate the ward's wishes when making decisions on their behalf.
Some questions the ward might be asked about financial decisions are:
- What is your financial history?
- Are you in any debt?
- Are you able to plan and save for the future?
- Do you have enough money to provide for yourself in your retirement?
- Have you made a will?
- How knowledgeable are you about financial investments?
- What, if any, types of investments do you currently have?
- What are the things you like to spend money on?
- What are your highest priorities when spending money?
- Are there people or organizations to which you generally make gifts or contributions?
- How would you like to invest and manage your money in the future?
- Do you want to stick with what you know, or are you open to new investment options?
- Do you prefer higher-risk investments with a possibility of higher return or lower-risk investments with a smaller, guaranteed return?
- If you need help with your finances, who would you like to help you?
- Who can you trust to ensure your best interests?
- How well does this person handle their finances?
- Are they in debt? Do they have a good credit record?
- Are they knowledgeable about financial investments?
- Do you have a financial advisor, or would you like to obtain one?
- Would this person be a more objective spokesperson than a relative or close friend?
- Are there certain people with whom you would like your spokesperson to discuss financial decisions on your behalf (e.g., family and financial advisors)?
- Is there anyone you would not want to be involved in helping make financial decisions on your behalf?
- How closely would you want your spokesperson to follow your instructions about financial decisions rather than what he or she thinks is best for you at the time decisions are made?
- Are there other things you would like your spokesperson to know about you if they were ever in a decision to make financial decisions on your behalf?
While it is not assured that all courts will follow the guidelines, the handbook is a good start in recognizing that older adults should be entitled to retain some rights despite diminished capacity.
By exploring the cause and nature of the incapacity and incorporating the person's values and preferences into the guardianship plan, we can help ensure that people will not be stripped of their dignity due to illness or aging.
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