Around 12 million people in the US require long-term care.
Without advance planning directive, some of these adults will need a legal guardian to make their decisions for them.
If you have an adult relative who you feel will need a legal guardian, there are many things to learn about the process.
Read on to learn more about the concept of legal guardianship for adults and what you’ll have to do if you want to become a guardian.
When Should I Apply for Legal Guardianship?
If you feel that your loved one is incapable of making responsible decisions for themselves, it might be a good idea to consider guardianship.
A court will consider applications for legal guardianship in respect of adults with disabilities, or those who have reached an advanced age and are no longer mentally competent. This incompetence need not be absolute; many adults with guardians remain in possession of most of their mental abilities.
Is Legal Guardianship Necessary?
This is the central question in all adult guardianship cases. If the adult has a valid Power of attorney, a guardianship may not be needed.
Power of Attorney
The legal concept of power of attorney gives one individual the contractual right to make certain decisions in respect to another individual.
There are financial powers of attorney and healthcare powers of attorney. Each of these should be stipulated by a separate legal document.
The reason why power of attorney is a preferable arrangement in many cases is that the adult selects the person who is to have the power. If someone creates a legally binding document specifying who should assume power of attorney over their affairs, this takes effect if and when they become legally incompetent to do so themselves.
What’s Different About Legal Guardianship of an Adult?
Because adults are considered, by default, responsible enough to take care of themselves, legal guardianship can be much trickier to secure in respect of an adult than a child. However, it is still possible.
To secure a right to adult guardianship, there are certain things you’ll have to prove to a court. The key consideration is proof that the person is incapable of making important decisions for themselves.
In certain cases, such as where the person is in a coma or has very severe dementia, this won’t present a problem. However, most situations will be less clear cut than this.
The vast majority of adult guardianship cases involve individuals with many of their mental faculties. Such people might have no issue making themselves understood, but could struggle to manage their financial or healthcare affairs.
A person like this might not appear to need a guardian and may object strongly to the idea themselves.
However, that’s not to say that guardianship isn’t the best course of action. If a person’s behavior puts them at serious risk, even if only on occasion, guardianship may be the most effective way to keep them safe.
However, a judge must have regard for the constitutional right to self-determination. An adult should be free to make their own choices, even if these choices seem poorly thought out or even dangerous. An exception to this is only possible where a doctor determines that a person is medically incapable of looking after themselves.
Who Should an Adult Guardian Be?
If there is no alternative but to apply for legal guardianship, the most important thing to consider is who should occupy the role. A child or sibling of the vulnerable person is the most common choice.
However, if there is more than one suitable candidate, there may be a dispute as to who should do it.
If there is disagreement over who a legal guardian should be, finalizing the arrangement can be a long and arduous process. However, you should always try to agree on matters of this nature privately rather than going to court.
If your family is struggling to come up with a solution, it’s a good idea to hire a lawyer. A professional with expertise in this area will be able to highlight all the rights and responsibilities involved in the role and help you come to a decision on this basis.
If no suitable family member or friend can be found, a county-appointed guardian may be necessary. This is not ideal, as a county-appointed guardian is not going to be able to care for a ward in the same way a family member would.
What Is a Guardian Ad Litem?
A guardian ad litem is a guardian that the court appoints to protect a child’s interests in a single case. Courts will only take this course of action where they feel that a vulnerable person needs it, usually in a dispute around their estate or the arrangements about their continuing care.
It is important to note that a guardian ad litem is not the same thing as a county-appointed guardian. The former assumes the role of guardian only for as long as is necessary for the legal matter at hand.
A lawyer usually assumes the role of guardian ad litem. A judge may appoint a guardian ad litem without the ward’s consent if they feel the situation requires it.
Keeping Your Loved One in Safe Hands
Every adult wants to be able to take responsibility for themselves. Unfortunately, whether due to age or disability, there are some people for whom that isn’t a possibility.
If no other arrangement will work, legal guardianship can provide a dignified method of ensuring their safety and happiness.
To learn more about how we can help you with matters relating to the care of an adult, contact us today.
