What happens when an adult can no longer make meaningful decisions?
The time comes in many families when an elder relative is no longer able to fully care for themselves. In many situations, the loved one experiences physical decline but still has all of their mental faculties. Those people might rely on family for physical care, but will likely still be able to make their own decisions and successfully manage their own life.
However, what happens when the decline is cognitive instead of physical? Many older Americans experience some form of cognitive impairment, which can stem from Alzheimer’s or dementia, a stroke or brain injury, or other serious physical or mental illnesses. When an adult loses the ability to think clearly, it also affects their ability to make conscious, clear-headed decisions. This can look like the inability to: properly maintain finances, take medications as prescribed, physically take care of their health and hygiene, and so on.
When an adult is unable to make their own decisions, they may need somebody to assist in managing their life and care. In extreme situations, somebody can be appointed as an “adult guardian,” and take over decision making on their behalf. Adult guardianship (also called elder guardianship or elder conservatorship) is intended to ensure the safety and quality of life of the care-recipient.
How does adult guardianship work?
Though adult guardianship has an important function, it can also lend itself to elder abuse. The government takes this risk very seriously, and therefore has strict regulations and protocols around establishing an adult guardianship. Each state has their own laws, but generally a relative, friend, or government agency can petition for guardianship. It is a lengthy process, and a guardian will only be appointed if the court hears sufficient evidence that the elder lacks the mental capacity to make informed decisions for themselves. The elder has the right to an attorney and to contest the guardianship.
If it is deemed that a guardian is needed, preference is generally given to:
- The care-recipient’s spouse
- Adult children
- Family members
- Alternatively, a professional guardian may be appointed if friends and family are not able to serve in this role
Rules vary state to state, but generally the guardian will be able to make most decisions for the care-recipient, including over their finances, healthcare, and living situation.
Ideally, adult guardianship would not be necessary. Guardianship is most often reserved for situations in which the care-recipient did not appoint a power of attorney for their finances and healthcare before their cognitive decline, or if their POA is not durable, meaning that it ends upon their incapacitation.
Estate planning with the proper advanced directives can allow elders to make these important decisions ahead of time, while they are still in sound mind. While that’s ideal, it is not always feasible for all families, making adult guardianship an important alternative – especially in situations where the decline was very rapid, and the family didn’t have sufficient time to prepare.
Having the authority to make another adult’s decisions is a tremendous responsibility. Guardians have a fiduciary duty to always act in the best interest of the person they’re appointed to serve (the care-recipient).
The guardian is responsible for making decisions related to the elderly person’s finances, healthcare, living arrangements, and support, though specific areas of decision making power are determined by the court. Whenever possible, the guardian should seek the input of the care-recipient, and strive to make collaborative decisions.
All court-appointed guardians are entitled to reasonable compensation for their services, however when a family member or friend is appointed as guardian they typically do not charge for their support. Private guardians, on the other hand, do receive compensation and are appointed when a friend or relative is not able to serve. If the care-recipient does not have the funds to pay a private guardian, the court may appoint a public guardian, which is funded by the government and is free for the care-recipient.
If you think that your loved one could benefit from adult guardianship, we recommend consulting an elder care attorney in your state. Adult guardianship is expensive and timely to execute, and should be considered a last-step if more traditional estate planning is not feasible for your care-recipient. Before positioning for adult guardianship, you should first consider alternatives such as:
- Financial durable power of attorney
- Advanced healthcare directive
- Living trust
Ideally, the elderly should maintain as much control over their own decision making as possible. Given the complexity involved, adult guardianship is not a step that should be taken lightly. An attorney will be best able to advise on your specific situation.
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