Guardianship

Appointment of a guardian for an adult is very different from appointment of a guardian for a minor. A minor, by legal definition, lacks the capacity to manage his or her own personal or financial affairs. An adult, however, is presumed to have such capacity. Before a guardian may be appointed for an adult, it must be established to a court's satisfaction that the adult individual lacks capacity to make his or her own decisions. The procedures for the appointment of a guardian of an adult are therefore more detailed than the procedures for a minor's appointment.

Guardianship of adults is an issue of growing importance, a shift explained by changing demographics. Approximately 80 percent of adult guardianship appointments are made for individuals age sixty or older. This segment of the population is rapidly increasing. In 1987, there were 29.8 million Americans age sixty-five or older. By the year 2020, the number is projected to exceed 52 million. Guardians are also frequently appointed for individuals with developmental disabilities and individuals with serious mental illnesses.

Guardians may be appointed only for adults who are determined to lack capacity. Capacity is a legal standard, not a clinical one. Professionals such as physicians, psychologists, and social workers may be asked to provide evidence concerning the individual's medical condition and ability to perform certain tasks, but the determination of whether an individual lacks legal capacity to make his or her own decisions must be made by a court.

The definition of incapacity was traditionally based on a categorical approach: Did the individual have a specified impairment such as mental deficiency, mental retardation, or infirmity of advanced age? In most states, however, the definitions have moved away from such labels and conclusory statements. The growing trend is to focus on the individual's ability to make decisions with respect to self-care and management of property. If the individual is unable to make such decisions, then a guardian may be appointed if the individual's needs cannot be met by any less restrictive means.

Guardianship of an adult is initiated by filing a written petition with a court, requesting that a guardian be appointed. The petition may request the appointment of a guardian of the person, a guardian of the property, or both. The same person may be appointed as guardian of the person and guardian of the property, or different persons may be appointed. The individual for whom guardianship is sought (the respondent) must be given notice of the petition and has the right to contest the requested appointment. In many states an attorney must be appointed to represent the respondent. The court may also appoint a visitor to make an independent investigation on whether guardianship is appropriate or order that the respondent be examined by a physician, psychologist, or other qualified professional.

The procedure for appointment of a guardian concludes with a formal hearing before a court. At the hearing, the judge considers the evidence and either makes the appointment, rejects the appointment, or orders that the respondent's needs be met by other means. In some states the respondent may request that this determination by made by a jury. As with minors, the guardian will usually be a close family member. Before making the selection, however, the court will generally consider the ward's preferences.

The role of the appointed guardian has traditionally been to act in the ward's best interests. Under this model, the guardian must make an objective determination of what is best for the ward and act accordingly. Whether this determination conflicts with the ward's current or prior expressed wishes is not a factor in this situation.

However, other approaches have become increasingly important. Under the least restrictive alternative model, the guardian may exercise authority only to the extent necessitated by the ward's limitations. The guardian must select the alternative least restrictive of the ward's independence and freedom. The guardian must also encourage the ward to participate in making decisions. A third approach is the substituted judgment model. The guardian must make the decision that the ward would have made had the ward still had capacity. Under this approach, the ward's prior expressed wishes and personal values are important factors to be considered.

Many adult guardianships continue for the ward's lifetime and are terminated only by death. Upon the ward's death, the court will discharge the guardian, and the ward's assets will be distributed under the ward's will or to the ward's heirs. Guardianships are not necessarily lifelong, however. The ward may recover capacity, in whole or in part, or other changed circumstances may suggest that guardianship is no longer needed. In all states, a ward may request termination of the guardianship. To protect this right, many states provide that the ward's request need not be made by a formal petition but may be made by informal letter.

The decision to seek guardianship of an adult should never be made lightly. The position of guardian is a heavy responsibility. The ward, because he or she has been found to lack legal capacity, may lose many basic rights, including the right to vote, to travel, to decide where to live, to divorce or marry, to keep and care for children, and even to drive a car.

Similar to children, incapacitated adults are sometimes moved to different states or countries with the appointment of a guardian used to confirm residence in the new locale. Sometimes the move is arranged by a child who disagrees with his or her siblings on what care is best for the parent. Compacts among the states and international treaties attempt to limit use of guardianship to cases where a move to another jurisdiction is in the parent's best interests.