What is Guardianship?

August 21, 2007

About 15 percent of adults in the United States provide special care for sick relatives, many of whom are seriously ill or disabled. This is a significant public health problem and shows that those family members who care for persons with diseases such as Alzheimer’s are not alone in their responsibilities. Society’s concern in the form of legal expression has developed to deal with the problems of infirm persons.Early in the course of Alzheimer’s disease, the family should prepare for the patient’s eventual decline in judgment by inquiring into procedures needed to obtain guardianship. These procedures vary from state to state, as does the extent of disability needed to warrant guardianship. A guardian is any person appointed to manage the person, property, or rights of an individual when proof is presented to the court that the individual is not competent to manage his or her own affairs.

In many states there are several types of guardianships that may be pursued when some intervention is needed with an infirm family member -

(1) Guardianship of the infirm person’s estate

(2) Guardianship of the person, which allows the family to intervene to protect the patient’s health or welfare

(3) A mixture of the other two types of guardianships.

Guardianship of the Estate

In a guardianship of the estate the alleged incompetent person must be shown to be incapable of managing his affairs, meaning that complete incompetence need not be shown. A lack of business sense, physical infirmity’ or poor memory are, by themselves, not necessarily enough to warrant the imposition of a guardianship. The court will look to the person’s total circumstances and then decide if a guardianship is needed. The totality of circumstances includes the size and complexity of the estate, and other factors that need to be examined. In Alzheimer’s disease the extent of memory loss and rapid decline of personal care capability could prove to the court that an individual does not have the capacity to manage the affairs of daily life. If this is indicated, then the court will appoint a guardian.

Guardian of the Person

A guardian of the person is appointed when the individual under consideration is no longer capable of managing himself and must be placed under the care of others. This can occur in both chronic and acute disease situations: the individual is robbed of the capacity to make decisions, and others must make decisions for him. For example, before most medical procedures are performed, the patient must provide consent. Informed consent requires that the individual knowingly and willingly consents to the procedure after the risks and benefits are explained. When the patient is unable to understand the risks and benefits of the procedure, informed consent cannot be obtained and the procedure may not be performed. When this occurs, the physician or hospital may pursue the appointment of a guardian to provide substituted consent. In some jurisdictions, when an Alzheimer patient is unable to give informed consent the next-of-kin can provide it, with the assent of the patient.

A guardian may sometimes be limited in the ability to consent to care. For example, some states do not allow a guardian to consent to procedures such as electroshock therapy or discontinuing life-maintaining procedures. In such states it may be wise to execute a durable power of attorney for health care which will allow substituted consent to a full range of medical decisions even in the presence of in competency of the patient.

Posted in Legal Consideration