A person needs a guardian when he or she becomes physically, mentally or financially unable to function independently. The issue of a need for a guardian can arise in a number of ways. Sometimes loved ones will not be able to deal with their own activities of daily living, such as grooming or household chores and cooking. Or family may realize that their loved one is giving away money to lots of charities, ordering many magazines or having trouble with paying their bills. Often healthcare providers will require a guardian if they sense these issues. It is important to determine how necessary this action is and have all in agreement.
The definition of guardianship, according to the National guardianship Association, is a legal process utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove considerable rights from an individual, it should be considered only after alternatives to guardianship have proven ineffective or unavailable.
Alternatives to guardianship may include:
- Representatives or substitute payees
- Case/care management
- Trusts
- Durable Powers of Attorney for property
- Durable powers of Attorney for health care
- Living Wills
- Joint checking accounts
- Community agencies/services
For all alternatives other than guardianship it is necessary to launch them while the person involved is still able to make sound decisions and has cognitive capabilities. These documents and decisions must be made with the consent of the older adult, and ideally with the full participation of all involved family members. Everyone should consider these documents at any age because an accident or illness can strike at any age. In fact, in some states if both parents die simultaneously and there are no designated guardians for the children, Child Protective Services will take custody until all of the family details can be handled.
Planning ahead and having these documents prepared is the best thing families can do to avoid heartache and headache in the future. It would be best to seek advice from an attorney who specializes in these issues. You can also check with the National Guardianship Association at www.guardianship.org
