Michelle and her husband were greatly relieved at their arrangement. Now, they could only hope that it worked. Michelle and her husband had two sons, both now adults. Their older son was hardworking and unmarried, living in a condominium. Their younger son had never worked. Indeed, he’d been modestly mentally disabled since birth. He could communicate with difficulty and generally care for himself when alone, provided that he had substantial structure and support in place. He had, though, to live with a caretaker who was generally present or always available on short notice. Michelle and her husband, aging fast and soon no longer able to care for their younger son, had just arranged for their older son to take over their younger son’s guardianship. They hoped the new arrangement would last.

Definition

Guardianships can be an important part of a family legacy. A guardianship places a competent adult individual in care and custody of a minor or mentally disabled ward, to make decisions for the ward’s health and welfare. A guardian takes a role equivalent to the parent of a minor child, although the ward for whom the guardian cares need not be a child and may instead be an adult of limited capacity more like a child. Lawyers and judges sometimes refer to a guardian as acting in loco parentis, which is Latin for in place of the parent. The guardian provides or arranges for the ward’s housing, food, clothing, education, medical care, and other needs. The guardian may also manage the ward’s financial and legal affairs, although a guardian may alternatively defer those duties to a conservator. When your family includes individuals with limited capacity to care for themselves, a guardianship could be your legacy answer.

Purpose

A guardianship’s general purpose is to ensure adequate care and supervision for the mentally disabled ward. More specifically, a guardianship’s purpose is to put in place a trusted individual with the authority to make care and supervision decisions for a mentally incompetent person, that a  probate court can oversee, review, and approve. Society doesn’t want mentally incompetent folks wandering around unable to care for themselves. Nor does society want untrustworthy individuals manipulating and preying upon those mentally incompetent individuals to their harm or disadvantage. Thus, state legislatures give probate courts the authority to appoint trustworthy guardians to make decisions about the care of mentally incompetent individuals, under the court’s supervision. Guardianships can be contentious and difficult, particularly when the ward believes in the ward’s own competence but evidence suggests otherwise. Yet the system is generally sound and reliable. Use it wisely if you have mentally incompetent individuals in your family for whom your legacy should provide care.

Parents

The reasons for a guardianship can have to do with either the parent or the child. A parent with a minor child is the child’s natural guardian. You don’t need a probate court to appoint you as guardian to make decisions for your own minor children’s welfare. Society trusts parents with that authority until a parent demonstrates their untrustworthiness with an incident of abuse or neglect. But that’s precisely where a guardianship may arise, with a parent’s abuse or neglect. In that case, the probate court may remove the child from the parent’s custody and care, and appoint a guardian for the child. The guardian is often a grandparent or the parent’s brother or sister (the child’s uncle or aunt) with whom the child may already live or at least be close and secure. A parent’s abuse or neglect aren’t the only reasons why a minor child might need a guardian. The parent’s drug addiction, drug dealing, prostitution, or other endangerment of the child, hospitalization for long-term medical or addiction treatment, military deployment, or arrest and imprisonment on charges or after conviction are other examples when a guardianship may be necessary and appropriate. You can create a substantial family legacy by taking on the guardianship of a minor child whose parent is unable or unwilling to provide the child’s care and supervision. 

Children

Just as a parent’s issues can require a child’s guardianship, children can also be the cause of their own guardianship. A parent is a child’s natural guardian until the child turns eighteen, when most state laws presume the child’s competence to make their own care decisions as an adult. Some states raise the age of competence for certain acts to twenty one. Yet some children never attain adult mental competence. A child mentally disabled from birth or suffering a mental disability before maturity may need the parent to continue to care for the child into adulthood. In those cases, the parent will need a probate court appointment as the adult child’s guardian. Medical care providers, schools, residential facilities, and other goods and service providers will need the guardianship to recognize the parent’s authority to act for the adult child. If you have a minor child whose mental incompetence may stretch into adulthood, begin planning for a guardianship appointment before your child turns eighteen. Make your legacy one of continuing care.

Adults

Adults can also lose their competence. Injury, illness, addiction, and similar causes can strip an adult of their ability to make sound decisions for their own care. If the mentally incompetent adult is young enough to have an able parent, the parent makes a natural candidate for appointment as the incompetent adult’s guardian. If the incompetent adult is married, the spouse makes a natural guardian candidate. Otherwise, the incompetent adult’s sibling, aunt or uncle, or even an adult child of the incompetent adult may make an appropriate guardian. Adult child guardians are common for the elderly with dementia. If no relative makes an appropriate guardian and is willing to serve, then the probate court may appoint a qualified professional as guardian. Probate courts commonly appoint lawyers, social workers, geriatric care managers, and other social-service professionals as guardians when no family member is available or willing to serve. Serve as your mentally incompetent family member’s guardian if you are able and qualified. If not, help your incompetent family member obtain another family member or professional guardian. 

Process

Guardianship proceedings are generally in probate court, a special court for estate proceedings. Parents with a minor mentally incompetent child generally initiate a probate court proceeding for appointment as the child’s guardian, as the child approaches age eighteen. Adult guardianships, on the other hand, often arise in crisis situations, such as with a medical intervention over the adult’s healthcare crisis, social services intervention in a situation of severe personal neglect, or law enforcement intervention in a situation of public or private irresponsibility. Hospital, social services, or law enforcement officials may seek probate court review before releasing the incompetent individual at their peril or public peril. Family members will receive notice and have an opportunity to participate in the probate court proceeding, which may result in appointment of you, another family member, or a professional as your struggling relative’s guardian. The guardian must file an acceptance of appointment for the guardianship to be effective. The probate court will not force an individual to serve as a guardian. The probate process may further result in an order for involuntary institutional care until the ward is able to reside safely and securely in housing the guardian arranges with other supportive services. Standing in the gap for your incompetent family member in a crisis proceeding is a legacy-building action. 

Competence

Judging who is competent to make decisions about their own care and who is not competent can be a tricky question. Your struggling family member may disagree with opinions and rulings on their incompetence. The probate court judge generally determines incompetence based on expert medical opinions and related evidence indicating the individual’s inability to reliably provide the individual’s own care. You and other family members may be witnesses in a competency hearing, as may your struggling family member’s examining psychiatrist, psychologist, social worker, and other mental health professionals. Competence isn’t always a black-and-white, yes-or-no proposition. Competence is instead a spectrum of states and abilities in different areas at different times under different circumstances. Support your family member through the probate process. Respect probate court orders. The probate judge may err on the side of your family member’s safety and security. The probate judge may also enter temporary or interim orders helping your struggling family member get back into a better situation.

Alternatives

Given the spectrum of needs and abilities around the question of mental competence or incompetence, you may have other tools outside of a full guardianship to help your struggling family member. Powers of attorney, described in detail in the prior chapter, can be useful aids or even sound solutions. A healthcare power of attorney could enable you to arrange and approve medical or psychiatric evaluations and medication or other treatment, enabling your family member to remain independent, without a formal guardianship. Likewise, a financial and legal power of attorney may enable you to arrange housing, utilities, and cleaning and food services, make deposits, pay bills, and otherwise keep your relative reasonably independent, without a formal guardianship. You and your struggling relative may find that your relative’s granting you a power of attorney to make certain decisions and enter into certain contracts is enough for your relative to continue to live with a greater degree of autonomy than a formal guardianship would permit. 

Supervision

The probate court supervises guardianships. Supervision generally means that the guardian must complete an annual report or other periodic reports to the probate court, accounting for the guardian’s activities on the ward’s behalf. In the annual report, the guardian may have to report on the ward’s physical and mental condition, any changes in that condition from the prior report, and any medical care the ward has received. The guardian’s annual report may also have to describe the ward’s living arrangements and educational, vocational, social, and recreational activities. The annual report will likely also have to describe the ward’s continuing need for guardianship, in sufficient detail for the probate court to approve. The probate court may require, or the guardian may request, a hearing to review and approve major changes in housing, supervision, medical care, or other matters affecting the ward’s health or welfare. 

Residence

Just because you accept a guardianship over your incompetent adult child or an incompetent sibling, parent, or other relative does not mean that your ward must reside with you. A ward may live with the guardian under the guardian’s care, much as a minor child would live with a parent. Such would often be the case when a grandparent takes guardianship over a grandchild. The grandparent would, in effect, treat the grandchild like a child in the grandparent’s home. But in the case of an adult guardianship, the guardian may instead prefer or need to arrange for the ward’s residence at another location, without residing with the ward. A guardian of an adult disabled ward, for instance, may arrange assisted living quarters or institutional care for the ward, with appropriate professional supervision and care, while the guardian monitors the ward’s needs and circumstances, making necessary and appropriate decisions for the ward’s care. The ward’s living arrangements may also change over the course of the guardianship, in either direction toward greater or lesser institutional care. Make the best arrangements possible for your ward, whether living with you at your substantial sacrifice, residing apart with a sibling or other relative, or living in an institution. Doing so enhances your legacy.

Guardians

The choice of guardians can be important to the incompetent individual’s quality of life, recovery, growth, maturity, and other outcomes. In some cases, the guardian choice is obvious, such as where a minor child of an incompetent parent is already living with a grandparent who strongly desires to serve as the child’s guardian. In other cases, the choice of guardians is not obvious and may even be in sharp dispute among relatives, such as where two sets of grandparents each claim to be the better guardians for their beloved grandchild, or where siblings compete to care for their incompetent sibling’s minor child. The probate court decides, giving priority to family members over professional guardians while tending to prefer closer relatives over more-distant relatives. The ward’s best interest, though, is the standard that the probate court must follow. Any material evidence regarding the guardian’s fitness and ward’s needs may influence the probate judge’s decision. Be wise in your offer to serve as a guardian. Be sure that you can do so responsibly, and defer to others whom you know to be better qualified.

Powers

The primary power a guardian has is to decide where the ward will live. That choice may be between living with the guardian, living with another relative but under the guardian’s supervision, residing in an assisted-living arrangement, or residing in a nursing facility or similar institution. A guardian also decides on the ward’s schooling, whether in public or private grade school, extended schooling available in many states for mentally disabled individuals up to age twenty-six, or special vocational training programs. A guardian also decides on medical care, including hospitalization to accept, physicians or specialists to see, medication to take, and other therapies or interventions to undergo. Guardians may also decide on vocational, recreational, and developmental activities like special job programs in which to participate, camps and programs to attend, trips to take, and athletics or hobbies in which to participate. Guardians may also have the power to manage the ward’s financial and legal affairs, if the ward does not have a separate conservator to take on those duties. See the next chapter for a more-detailed description of conservatorships and their powers.

Elderly

Guardianships are not just for children and younger adults. Guardianships are also relatively common among the elderly. An elderly individual with dementia, in particular, may be utterly unable to make decisions about their own housing, medical care, and other needs. Adult children monitoring their elderly parents’ mental decline can face the difficult moment of having to intervene to ensure their parents’ care. Formal guardianship may not be necessary as long as the parent cooperates with the adult child’s sound recommendations and accepts the care that the adult child arranges. The parent may, of course, reject the child’s recommendations, offers, and arrangements. But when the rejection leads to a medical or other crisis, the child may need to intervene, even seeking a probate court determination of incompetence and the child’s appointment as guardian, against the parent’s wishes. Often, medical, social services, and law enforcement officials will be involved at that point, speeding and guiding the probate process. Those times can be difficult. Yet they can also make a legacy. Be there for your parents or other elderly relatives, even if they do not initially understand and appreciate your care.

You

You, too, may at some point need a guardian to preserve your legacy. In your later years, your mental health may decline to the point that you are unable to make sound decisions about your own health. In that time, your willingness to cooperate with your spouse, adult children, or other relatives, friends, and caretakers can be critical to preserving your legacy. Your poor financial decisions, healthcare decisions, and lifestyle decisions when you are increasingly incompetent to make those decisions can spoil your hard-earned legacy. The moment you see dementia or similar decline approaching, work closely and trustingly with your spouse, adult children, or other trusted relatives or representatives to put a guardianship, conservatorship, or other appropriate plan in place. Don’t let dementia or other decline steal your legacy from you.

Reflection

Does your family have a mentally incompetent member? Has your family discussed or put in place a plan to care for that mentally incompetent member into and through adulthood? Does your mentally incompetent family member currently have the housing, services, and other care your family member needs? Are you confident that the plan your family has for its incompetent family member will continue to work into the future? Do you need to adjust the plan to ensure it continues working? Do you participate in the probate court supervision process of that plan, contributing to annual reports or attending hearings? Can you be of any better service to your incompetent family member, in the way that you support that family member’s care? Do you have a parent or other elderly family member whose mental and physical decline may soon reach the point where they cannot make sound decisions for their own care? Have you discussed an intervention and guardianship plan, whether formal or informal, with them? Do you have any mental health condition or family history that suggest that you should consider such a plan for your own care?

Key Points

• A guardianship appoints a trustworthy individual to care for the ward.

• A guardianship protects the ward’s health, safety, and welfare.

• Parents are natural guardians for a mentally incompetent adult child.

• Incompetent older adults may need a sibling or adult child guardian.

• A probate court appoints a guardian after a hearing on competence.

• Medical and mental health professionals testify to incompetence.

• Powers of attorney may be suitable alternatives to guardianship.

• The probate court supervises guardians through annual reports.

• Guardians make medical, housing, care, and other decisions.

• The elderly suffering dementia may require guardianship.

• Cooperate in your own guardianship if you discern dementia’s onset.

Read Chapter 17.