Guardianship, also known as conservatorship, is a legal process whereby a court appoints an individual or corporation to handle the financial and/or personal needs of a person who is no longer able to do so. Obtaining guardianship and conservatorship is not a simple matter because generally, adults have the right to make their own decisions. As a result, courts require that the party seeking the guardianship prove that a guardian is necessary. Where the adult has severe dementia, it will likely be clear that a guardian is needed. However, guardians must still go through a court process to obtain guardianship or conservatorship, and then comply with all legal requirements in exercising their authority.
When Is a Guardian or Conservator Needed for a Person with Dementia?
In the early stages of dementia, a guardian might not be needed. However, as dementia progresses, the individual likely will not be able to care for themselves. They may not be able to remember to take medication, maintain regular hygiene, or manage their finances and other personal decisions. In these situations, it is in the individual’s best interest to have someone appointed who can take over and manage those tasks for them. A guardian or conservator may be appointed over the “person” and/or the property/finances of the incapacitated person. The personal guardian is empowered to make decisions about medical care, residency, and other personal decisions for the individual with dementia. The property guardian is empowered to manage the individual’s finances and pay bills. They can be two different people or one person can have both roles.
What Is the Guardianship Process?
Each state has its own specific guardianship process and requirements. However, generally, the steps to be taken include the following:
- A petition is filed with the appropriate court requesting that a guardianship be instituted. While the incapacitated person can petition for a guardian, in the case of severe dementia this is unlikely. Instead, the petitioner is usually the individual’s spouse or domestic partner, relative, friend, or a state or local governmental agency. Typically, the petition will include information about the person for which guardianship is being sought and the reasons why the guardianship is necessary. If the dementia is not that severe, the court may want the petitioner to explain why alternatives to traditional guardianship are not appropriate, such as a Power of Attorney, Advance Medical Directive, or other options.
- The individual and necessary relatives are informed that the petition has been filed. This provides notice to parties that may wish to contest the guardianship or the designated guardian.
- A court investigator investigates the case. The purpose of this is for the court to determine if the proposed guardianship is necessary.
- The court conducts a hearing. The judge will review the petition and listen to any statements to determine if the individual lacks the ability to care for himself or herself. The court will decide what is the least restrictive means to protect the individual and issue an order that is appropriately tailored to meet the individual’s needs.
What Are the Duties of the Guardian?
The court-appointed guardian will be given decision-making authority over the individual, subject to any limitations or restrictions imposed by the court. Usually, the guardian will be tasked with handling:
- Medical decisions – what doctors to see and types of medications to take;
- Financial matters – how to manage the finances, pay bills, and set and maintain a budget;
- Living arrangements – where to live; and
- Social interaction – who can visit and activities of the individual.
Importantly, the guardian owes a duty of care to the individual meaning that the guardian must put the needs of the individual first.
What Are the Ongoing Filing Requirements for Guardians?
Each state has specific requirements, but generally, a guardian appointed over the person must file an annual report with the court outlining how the individual is doing. Additional requirements apply to guardians over the estate or finances. These include filing an inventory of assets within a certain period of time after being appointed and providing an annual accounting that details the individual’s income, assets, expenses, and debts.
Should You Hire an Attorney to Obtain Guardianship Over a Person with Severe Dementia?
Guardianship rules are complicated, and as a guardian, you have significant legal responsibilities. Our attorneys have extensive experience with guardianship matters and can advise you throughout the process to avoid problems and potential liability. If you are seeking or contesting a guardianship, contact us for a consultation.