Since life expectancy has increased over the last two decades., a growing group of Americans will likely need some kind of long-term assistance. An important part of preparing for the future should you become unable to care for yourself is designating a health care agent and (if needed) a legal guardian. Having a health care power of attorney can usually avoid the need for someone to get appointed as a guardian through the court system. However, sometimes despite your best attempts at planning, someone will need to go to court and be appointed as your guardian.
A legal guardianship is a legal action in which someone is appointed by a court as a guardian to make decisions regarding healthcare and personal well-being for another person (who, in legal terms, is referred to as an “Incapacitated Person” or ward). These decisions can include living arrangements, medical care and whether the family should be able to visit.
Guardianship is a big responsibility, and it can sometimes be challenging. For example, I once represented a man who was caring for his mother as her legal guardian. They both lived in the Phoenix area. This man’s brother and sister, who lived in Michigan, wanted their mother to move out to live with them. Their mother was being well taken care of and was happy in Phoenix. This could have proved difficult, with different children wanting different things for their parent. But through working with my client on aspects of his guardianship, we were able to arrange a visitation schedule for the family, similar to child-custody arrangements common in divorce situations.
Guardianship is not that well-known a function among the general public. And common misperceptions and misconceptions exist.
• One is that the guardian is legally obligated to use personal resources to support the ward. This is incorrect. A guardian’s legal obligation is to use the ward’s resources to support the ward, not the guardian’s personal assets.
• Another is that the guardian assumes liability for the actions of the ward. This is not true except in cases where, say, the guardian gives a car or a gun to the ward. If the ward crashes the car or shoots someone with the gun, the guardian can be held liable if the guardian should have known that allowing the ward to have the car or gun was dangerous.
A guardian is required to sign a document called an Order to Guardian and Acknowledgement, which outlines the guardian’s responsibilities. A guardian should this document carefully and refer to it during the guardianship to prevent errors, and ensure that all responsibilities are being followed.
Here are two common mistakes that many guardians make:
- Failure to file an annual guardian’s report with the court. If you do not file this report, you will have to attend a hearing and explain why the report was not filed.
- Failure to restrict access to family and others when appropriate. This can justify removal of the guardian if the guardian is acting out of spite or maliciousness (as opposed to protecting the ward from people who may be dangerous).
As we age, our needs change. A health care power of attorney is an important part of a well-planned estate to make sure a person’s needs will be met as they arise. But sometimes this document can’t be found, or there is a dispute over who should be making the decisions. In that case, someone needs to go to court to be appointed as a guardian. Just as it can be a delicate situation to consider making a will or plan an estate, it can be difficult to approach one’s parents about needing help now or in the future. It’s important to be proactive and address these issues sooner rather than later.
That’s where you come in. Remind your parents that you care about them and that you want to do what’s best to promote their health and well being, both today and in the months and years to come. And sometimes you need to make the tough call and get appointed as guardian even if your mom or dad does not want to give up control over their personal or health care decisions.
Remember that you aren’t alone. This is a common situation faced by adult children caring for their elderly parents.