Guardianship and conservatorship—court appointments to make health care, financial and legal decisions for incapacitated individuals—should be last resorts, but too often are the first responses when someone with a disability reaches the age of majority or an older person begins showing signs of cognitive decline.
Deciding whether to pursue guardianship or conservatorship
The ABA Commission on Law and Aging has created both a legal guide and a checklist to assist attorneys in determining whether guardianship or conservatorship are appropriate in particular situations, but they are just as useful for non-attorneys making the same determination.
It’s a bit confusing, but they both have the same title: PRACTICAL Tool for Lawyers: Steps in Supporting Decision-Making. “PRACTICAL” is an acronym for the steps anyone considering guardianship or conservatorship should take, as follows:
Presume. Start by presuming that guardianship and conservatorship are not necessary.
Reason. Clearly identify the reasons for concern. Are there less intrusive and costly ways to address these concerns?
Ask if what’s causing the concern is temporary or reversible.
Community. Can family members and community resources address the concerns? Would it make sense for the person who is at risk to live in a different setting?
Team. This is similar to community, but is it possible to put a team of people together to keep the individual safe?
Identify the individual’s abilities and strengths. How can they be marshaled so that she can maintain her independence?
Challenges. Now that you’ve identified the various supports available, what are the challenges in making them work?
Appoint. Is it possible to appoint agents on a health care proxy or power of attorney or a representative payee for Social Security rather than a court-appointed guardian or conservator?
Limit. If a guardianship or conservatorship is necessary, is it possible to limit its scope so that the protected person can maintain some independence and self-determination?
There are a number of reasons to avoid guardianship and conservatorship if possible. They are court processes that take time and cost money. They take away the rights of the people under protection. They require reporting back to the court and sometimes require court approval for particular actions, all of which adds to the cost and time involved. Probate courts are busy places, often requiring hours of the guardian or conservator’s time, as well as that of the attorney, to get in front of a judge.
It’s best if all of this can be avoided. But sometimes it can’t, and the court process must be used as the last resort.