Are you worried about your loved one’s ability to make sound decisions? Is their mental or physical health putting them or others at risk? Seeing those we love struggle with physical or cognitive decline can be difficult. At some point, many older adults may be unable to care for themselves not only physically, but mentally.
What is Guardianship and How Does the Process Work?
If you are concerned that a loved one’s mental state is impairing their ability to make decisions, there are legal arrangements, such as guardianship, that can transfer decision-making responsibilities of a loved one with dementia or Alzheimer's to another person.
What is Guardianship?
Guardianship is a lengthy legal process by which a competent adult takes over the care of another adult whose mental state has rendered them unable to make cogent decisions for themselves. This is a legal designation that must be appointed by the Surrogate Court. Once appointed guardian, the individual has the legal authority to make decisions on behalf of their ward, including decisions about property management and financial matters. Legal guardians are then responsible to and supervised by the courts.
This differs from other legal arrangements, such as power of attorney, which gives one adult the right to make decisions on the behalf of another. In this case, the person granting power of attorney to another must be deemed mentally competent. Power of attorney can also be limited to specific decisions, such as property management and sale, or granting the ability to act as another’s agent in financial or health matters only.
The process of guardianship can be challenging but may be the best decision depending on the situation of the individual in decline and the person applying for the role.
What are the Benefits of Guardianship?
If you are concerned about the ability of a loved one to make informed decisions due to conditions such as dementia or Alzheimer’s, seeking guardianship will allow you to care for their health and financial well-being.
As an appointed guardian, you would take on decision-making responsibility for your loved one - legally referred to as a ward - unless specified otherwise by the court.
This will allow you to assume responsibilities which may include:
- Care decisions such as selecting doctors and specialists and authorizing all treatments and surgeries
- Property and financial management, including asset inventories, records of income and expenses, and tax filing
- Ensuring that your ward has access to the services and amenities they require to live adequately
Is Guardianship Appropriate for Your Loved One?
By law, guardianship is legally binding but can change if the needs of the ward change. If your loved one’s condition is putting them or others at risk, it may be time to seek legal advice about your available options.
While the decision to provide guardianship to a loved one may be difficult, it should ultimately be made with their best interests in mind.
Who Can Become a Guardian?
Guardians can be adult friends or family members of the ward, as well as neighbors, colleagues, or other associates. Those without anyone to serve as guardian could also benefit from corporate guardianship, a type of guardianship that can be carried out by non-profit or public organizations, including financial institutions or officials who have been deemed able to function as guardians. Each state has its own set of guardianship laws, so it is best to work with an elder care attorney to help you navigate the process.
What Are the Types of Guardianship?
New York State Guardianship
According to the New York State Unified Court System, there are four types of guardian designations, each of which can provide a person or entity guardianship over specific aspects of a ward’s life or care. These are:
- Guardian of the person. A guardian of the person can make life decisions for the ward like health care, education, and welfare decisions.
- Guardian of the property. A guardian of the property handles decisions about the ward's money, investments, and savings as directed by a judge. A guardian of the property must file an annual report about the property.
- Guardian of the person and property. This kind of guardian has responsibility of both the ward's life decision and the ward's property.
- Guardian ad litem. A guardian ad litem is assigned by a judge to act for a person during a court case when they cannot defend their rights or protect their own interests.
New Jersey State Guardianship
In New Jersey, the types of guardianship are divided into guardianship of the estate and guardianship of the person. Guardianship of the person is further broken into two types, depending on the level of guardianship required by the individual:
- General Guardianship. This type is an all-encompassing guardianship of the person, which is appropriate for individuals deemed incapable of making or expressing their own decisions.
- Limited Guardianship. This type of guardianship applies to decision-making about residential, educational, medical, legal, vocational, and financial issues. As its name implies, it is appropriate for cases where an individual can make and express some decisions, but not all.
How Can One Apply to Become a Guardian?
Guardianship is a legal process and varies from state to state. If you are interested in applying for guardianship of a loved one, we recommend that you seek the legal counsel of a local professional, such as an elder care attorney.
Applications will likely have several requirements - like providing paperwork from your loved one’s physicians or notarized affidavits from immediate family members. In some cases, prospective guardians may be required to complete a review of the state’s guardianship training materials or post a surety bond. We strongly suggest that you consult a professional in these legal matters as each state has its own set of requirements, and it’s possible for the requirements to change over time.
More Caregiver Resources
If you found this article helpful, we invite you to read these related resources including what warning signs to look for that indicate an aging parent needs help, and five smart ways caregivers are using technology to better manage their responsibilities.
