Adult Legal Guardianship - What It Is & Why It's Needed

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It's a difficult situation when a loved one can no longer take care of themselves and their needs, but legal guardianship can help. Legal guardianship is a legal process where a loved one petitions the court for permission to act on another person's behalf, usually a loved one who cannot make decisions or care for themselves on their own. This can be a minor, or an adult who is elderly, infirm, or incapacitated. The legal guardianship process will name a third party caregiver for the person - also called a ward - to ensure that the person's financial and physical needs are met. If you need to establish guardianship for an adult or minor, your attorney through our Legal protection Subscription Plans for Individuals & Families will be able to help. Learn more about all the benefits of membership, and read on for an overview of guardianship.

Laws governing guardianship vary by state, but, in general, the person petitioning for adult guardianship for a loved one chooses the type and kind of oversight needed, including financial decisions, medical decisions, personal decisions, or all of the above. When the person placed under guardianship is under the age of 18, there is generally a natural end date for this type of guardianship; however, when the ward is an adult, the oversight may continue for the rest of a person's life.

Adult guardianship is a way to protect elderly or incapacitated adults who may not be making sound decisions, such as financial decisions or dangerous activities. The legal process for petitioning for adult guardianship begins by filing paperwork with the court that shows the need for someone to have a loved one make important legal decisions about their life, health, and finances. Showing the necessity for guardianship when the person in question is a minor is typically easier to determine. These reasons include:

• A minor has lost both parents

• One or both parents are ill or otherwise cannot provide care

• One or both parents are incarcerated

• One or both parents are deployed with the military

• One or both parents cannot care for the child for another reason

When the person needing guardianship is a legal adult, the process can be a bit more difficult and take considerably more time. Emergency guardianship for an adult can be put in place quickly if you can prove the person needs immediate medical help that they are not seeking themselves, in cases of exploitation or abuse, or if you can document another pressing need for guardianship. Your attorney can review your documentation and give advice regarding your specific case to help you determine whether the courts are likely to grant emergency guardianship based on the facts you provide. Emergency guardianship is generally only granted in extreme cases where the person in question is unable to care for themselves and are in extreme and immediate danger and when there are no alternatives to alleviate the situation.

The legal process for granting adult guardianship will name a guardian - sometimes called a conservator - and this person will be responsible for overseeing the person's personal, medical, and/or financial affairs and decisions. In some cases, more than one person is named as a guardian, and the person chosen for this responsibility should be taken very seriously, as this person will be ensuring the person:

• Remains safe from fraud, abuse, and neglect

• Maintains a high quality of life

• Is protected from exploitation, financial or otherwise

• Receives needed medical care and treatments
  

Your loved one's specific situation may allow for alternatives to adult guardianship, including:

• Financial Power of Attorney

• Medical Power of Attorney

• Trusts and Living Wills

• Other community-based solutions
  

Guardianship cases are generally filed in county probate courts, and your lawyer will be able to advise you on the appropriate venue for filing. This is typically the county and state where the person currently lives, regardless of where the potential caregiver currently resides or where the ward will reside if and when guardianship is granted.

Some guardianship cases require a court appearance, but the process varies from state-to-state and even between counties in the same state. Generally, there will be a number of forms and documents to fill out, sign, and file with the appropriate court. This will include information about the ward, about the caregiver, about the ward's condition and medical history, and possibly, other steps that have been taken to alleviate the situation prior to seeking adult guardianship. The petitioner for guardianship can expect to answer a number of questions explaining the need for guardianship, and these may include information about the person(s) who will be guardians and medical information about your loved one's current condition demonstrating the need for a guardian, among other information and documentation, depending on your specific case and the laws of the court where you are filing.

It isn't always possible to restore the rights of a person after they have been placed in a guardianship, as most guardianships for adults are put in place due to debilitating conditions or progressive diseases such as Alzheimer's or dementia. In many cases, particularly in cases of elderly wards, the guardianship ends when the ward passes away. However, there have been cases of wards who recovered from the situations or conditions that required the guardianship, and their rights can be restored once they are again capable of caring for themselves. The guardianship system has protocols in place to check on the progress to review and assess progress and stability, to determine if the guardian is still needed or if the ward's interests and needs are being met.

Some states have annual check-ins and you will want to keep records of expenses and receipts of what is spent from the ward's accounts.

If your loved one needs assistance managing the tasks of everyday for their own health and safety, seeking guardianship may be a solution. It is important that you consult with a qualified, dedicated elder law attorney to explore all possible solutions for your situation, and our network of attorneys through our Legal Protection Subscription Plans for Individuals & Families lets you speak with an experienced attorney for just one low, monthly fee. Learn more about the benefits of membership or sign up today!

Why A Living Will Is So Important

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When a person cannot speak for themselves, a living will is an important health care document that is part of an estate plan, and it provides clear directives of a person's wishes, avoiding uncertainty in a difficult time and when loved ones may have differing wishes. A living will differs from a testamentary will in that it does not outline the disposal or distribution of a person's property or assets, but instead, a living will is a statement of a person's wishes as well as a guide for healthcare providers and family members.

What A Living Will Details

A living will - also known as an Advanced Directive - gives a person the right to direct future medical services and health care under circumstances where the person is unable to speak to healthcare providers or consult doctors personally due to incapacitation, a medical condition, or for another reason. This document gives instructions to medical personnel and health care providers for end-of-life situations; for example, directing attending physicians not to administer life-sustaining treatments or artificially administering nutrients or hydration. If such treatments have already begun, a living will may direct physicians to withdraw that treatment. A living will also allows you to appoint a proxy for your health care to help carry out your wishes. Laws vary state-to-state in regards to living wills and other documents, so it is always in your best interests to contact your attorney to discuss these and other estate planning issues.

Some states require that the attending physician and another doctor certify that the patient is permanently unconscious, terminally ill, or facing end-of-life conditions. If a healthcare proxy is named in a living will, that person can help make certain that the patient's wishes are carried out. The healthcare proxy should be someone who knows your wishes and is willing to make sure that those wishes are adhered to. It is also important to keep this information updated and current as your life changes.

Making A Living Will When You Are Well

If you are in good health, you may be asking why you need to have a living will. It is a document that will, hopefully, never be needed, but it can also alleviate stress for you and your loved ones in the event of a catastrophic medical issue or accident. It avoids disagreements among your loved ones at a stressful time, and ensures that what you want to happen is what occurs. Not having a living will has led to families dragging disagreements into court when they cannot agree on a plan to proceed involving a loved one's end-of-life care.

Many people have concerns regarding who makes the decision to administer or withdraw treatments when they cannot make those decisions themselves. A living will is an important and personal document that can avoid years of conflict or uncertainty about what a patient who cannot speak for themselves would want done. An example of this is a Florida case where a young, married woman fell unexpectedly into a coma and remained in that state for several years. Doctors believed that she would not recover and would remain vegetative for the rest of her life. Her husband wanted to remove life-sustaining treatments, but her parents wanted the treatment to continue. The case went to court, and, after a lengthy and expensive trial, the state court decided that the treatments could be stopped, and the woman passed away a few weeks later. This case highlights the importance of a living will, even for young, healthy adults.

If you are interested in preparing a living will as part of your estate planning, and want to make sure that it is legally enforceable in your state, speaking with an experienced, dedicated estate planning attorney is the best course of action. While many law firms charge thousands of dollars to prepare estate planning documents, members of our legal subscription plans get these essential documents prepared at no additional charge. Individuals and families can sign up for our legal subscription plans for just $29.95 per month and begin your living will, testamentary will, and other estate planning documents quickly and easily using our app. After filling out a quick questionnaire in the app, your attorney will contact you with any additional questions and have your documents prepared and ready to file with your state usually within just a few days. And another benefit is that you can update your wills for free at any time when your life changes as long as you’re a member. Learn more about estate planning through our legal subscription plans or sign up today!