There are several means by which someone can have the right to make decisions for an adult who is not capable of managing his or her own affairs. The most popular, and easily the least expensive, is by use of a valid Power of Attorney.

If there are no Power of Attorney documents in place, and an adult is not competent to grant one, then as a last resort authority to make decisions about health, safety or financial affairs can be granted by a court. A Guardian or Conservator may be appointed by a Court only after a fair hearing. This means that, if you haven't been to Court, you have not been appointed Guardian.

When an adult has been placed under the care and supervision of a Guardian, he or she becomes a "ward" in much the same way a child is a "ward" of its parents. An adult ward can lose the right to make many of the decisions we all take for granted, including the right to decide where to live and how money is to be spent or invested.

Because guardianship strips a person of so many rights, the Court will make every effort to avoid implementing a Guardianship if the same ends can be achieved by less intrusive means.

Guardianship proceedings are usually held in Probate or Family Court in the jurisdiction where the prospective ward lives. The Court will often appoint an "attorney ad litem," or an attorney whose sole job is to represent the interests of the proposed ward. The Judge will request testimony from professionals, family members, and also often from the proposed ward. This means that Guardianship proceedings can be very uncomfortable for family members who must testify about a loved one's inability to make good decisions while that person is sitting in the courtroom.

If, after hearing all the testimony, the Judge feels that guardianship is warranted, the Court will appoint a Guardian. Although most judges will take close family members' desires to assume the duties of Guardian into account, the Judge is not obligated to appoint a family member. If the judge believes that appointing a family member is not in the best interest of the proposed ward, he or she can appoint someone completely unrelated.

Having guardianship of an adult gives a Guardian legal responsibility to make decisions in clearly specified areas of a protected person's life. A Guardian may manage any property and may pay bills and taxes. A Guardian may decide where the incapacitated person will live, and may make all medical treatment decisions for a ward.

In some cases guardianship may be limited. In this case the Guardian will be required to have specific Court approval to do certain things (i.e., sell a home or move the ward into a nursing home). In most states, a Guardian cannot admit a ward to a psychiatric hospital or authorize certain drug therapies that may have long lasting or dangerous side effects without additional permission.

In some cases, a ward may be fully capable of making some decisions, but not others. It is not uncommon for a Guardian to be appointed to manage a ward's financial affairs, even if the ward is able to make personal medical decisions, or vice versa. In some states this financial Guardian is called a Conservator.

Once appointed, a Guardian or Conservator does not have the authority to do whatever he or she chooses for the ward. A Guardian/Conservator is always under the supervision of the Court that made the appointment, and an annual report about the ward's personal status and an audited accounting of assets, income and expenditures are usually required.

Because Guardianship proceedings can be complex, and often controversial, it is usually best to work with a qualified attorney who can guide a prospective Guardian through the process. In most states the process is not lengthy if Guardianship is not contested. Many states also have procedures in place to permit temporary Guardianship in the event of a medical or financial emergency.

A Guardian or Conservator is not required to use his or her own funds on behalf of a ward. It is the Guardian's duty to use the ward's funds in the most prudent manner to provide the necessary level of care and assistance. However, a Guardian may be held liable if he or she has improperly managed the ward's care, property or finances.

Guardianship is, frankly, something to be avoided if at all possible. The proceedings can be expensive, and the end result is often traumatic for both the proposed ward and the family. If other means can be used to achieve the same end, then there may be no need for Guardianship or Conservatorship.

What Can Prevent The Need For Guardianship/Conservatorship?

1. When there are Powers of Attorney, living trusts and/or joint bank accounts in place;

2. When a hospital or nursing home is honoring the nearest relative's authority to consent for medical treatment;

3. When no decisions need to be made, or someone is already making decisions and no one is objecting;

4. When Social Security has already appointed a Representative Payee, or the Veterans Administration has appointed a Custodian;

5. When the individual owns no property and has no other significant assets;

6. When bills are already being paid by automatic bill paying or money management services.