Parenting & Families

Caregiving

Guardianship & Caregiving

For caregivers of the [disabled], guardianship is often a last resort, dictated by the need to protect or ensure a loved one’s continued safety or well-being. Legally, a ward must be a person over the age of 18 with a disability resulting in incompetency. The court then recognizes the guardian’s right to make certain decisions for the ward that are in his or her best interest. By recognizing these rights as the guardian’s, the court takes them away from the ward.

Individuals who fit the legal definition of mental incapacity may suffer from:

A severe mental illness
An acquired brain injury
An intellectual disability
Conditions associated with old age
Conditions related to a stroke
Chronic intoxication
Dementia

By themselves, these conditions are not sufficient to classify a person as mentally incapacitated. Instead, this judgment is made with regard to the person’s ability to make an informed decision, and takes into consideration any harm or risk that the person may experience due to an inability to provide for or manage his or her personal affairs.

Guardianship is only recommended when other alternatives have proven to be ineffective. Before considering guardianship, families should look into less restrictive ways to help with decisions, including conservatorships and power of attorney contracts.

To informally assess a loved one’s decisional capacity, consider the following kinds of questions:

Does your loved one understand the circumstances surrounding a decision, and why a decision is called for?
Does your loved one understand the options available in making the decision?
Does your loved one understand the consequences of choosing certain options?
If your loved one understands the above, can he or she identify the appropriate person(s) to inform about the decision?

For a formal analysis of your loved one’s mental capacity, review the official definition of mental incapacity given by the Guardianship and Administration Act of 1993:

The inability of a person to look after his or her own health, safety, or welfare or to manage his or her own affairs, as a result of (a) any damage to, or illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or (b) any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever.

Because many states base their definition of mental incapacity on this law, it works as an informal definition, but you should check with an attorney for the specific rules governing guardianship in your loved one’s state.

Specific responsibilities for a guardian typically include:

Arranging and consenting to travel plans
Making living arrangements for the ward
Making decisions regarding the ward’s education
Gifting the ward’s money or property to others
Initiating, defending, or settling lawsuits
Lending or borrowing money
Making a will for the ward
Managing or possessing the ward’s property or income
Paying or collecting debts
Refusing or consenting to medical procedures

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