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When is Guardianship Appropriate?

In certain cases, mental functions decline quickly and extensively with advancing age. The reasons for this progressive degradation vary with the individual, but dementia, sparked by conditions such as Alzheimer's disease, diseased blood vessels in the brain, and Parkinson's disease, is a leading cause.

The loss of mental functions constitutes a profound tragedy for the individual and those who love him or her. It also creates a serious legal problem. The condition negates a fundamental assumption of law: that an adult person possesses the ability to decide on matters concerning property or person for their benefit. This assumed capacity for rational decision-making is the foundation that supports the concepts of independence and autonomy of the adult person.

When this mental capacity is lost, incapacitated individuals operate in a legal limbo — without the ability to decide for themselves, but having nobody authorized to decide for them. In such a situation, the law has two mechanisms for empowering someone else to act in behalf of the incapacitated individual; appointing an attorney-in-fact or a guardian.

Substitute decision makers

Before losing mental functions, the concerned individual appoints a substitute decision maker — or an attorney-in-fact — through a legal document known as a durable power of attorney. The substitute decision maker will have the authority to make decisions on finances and property management, as well as personal care decisions including health care, food, housing, and safety. This is a private solution which, if properly executed, will be recognized by the laws in all states. The durable power of attorney should specify which powers of decision are to be delegated to the attorney-in-fact (also called the agent), if there is a question or concern about granting full authority for all decisions.

Appointment of a guardian

In the absence of a durable power of attorney from the concerned individual, the courts of the state may appoint a guardian of the person and/or a guardian of the estate. Depending on the state, the guardian may also be called a conservator.

For a guardian to be appointed, there must first be a petition for guardianship filed with the court. In the ensuing guardianship proceedings, there must be presented proof of the proposed ward's loss of mental capacity, such as a specific diagnosis. But a mere diagnosis that a person is demented is not sufficient basis to declare him/her incapacitated. The definition of an "incapacitated person" as specified in the Uniform Probate Code must be satisfied.

"When mental capacity is lost, incapacitated individuals would operate in a legal limbo — without the ability to decide for themselves but having nobody authorized to decide for them. In such a situation, the law has two mechanisms for empowering someone to act on behalf of the incapacitated individual."

Under current practice, the courts prefer to impose guardianship only if there is compelling evidence that an individual cannot take personal charge of his/her care requirements. The mere fact that an individual is aged, retarded, or even mentally ill may not necessarily mean he/she needs to be declared legally incompetent.

Once the court is convinced of a person's mental incapacity, it then needs to determine that the appointment of a guardian is the only means to provide essential services and protection needed by the individual. If the person's needs are being adequately provided for through other arrangements, a guardian may not be appointed.

These alternative arrangements may be in the form of a durable power of attorney, joint ownerships, a living trust created to manage the person's assets, an advance health care directive, and a duly appointed representative to receive veterans or social security benefits.

Such arrangements help the individual to avoid guardianship, a process that can entail huge costs and a lot of time. But for individuals who have failed to make preparations for a possible loss of mental capacity, guardianship might be unavoidable.