Many older people who are concerned that they will someday be incapacitated protect themselves with a power of attorney. This document gives someone else the right to make decisions for you if you can’t make them yourself.
But what if a person who can no longer make decisions doesn’t have a power of attorney – or the power of attorney isn’t enough to protect them for some reason?
If this happens, a court may appoint a substitute decisionmaker. This decisionmaker is usually called a “guardian” or a “conservator.” The person under guardianship is usually called a “ward.”
In most states, anyone interested in a proposed ward’s well-being can request a guardianship. An attorney is usually retained to file a petition for a hearing in the probate court in the county where the ward lives. Protections for the proposed ward vary greatly from state to state, with some simply requiring that the ward receive notice of the hearing, and others requiring that the ward actually be present. The ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the ward can’t afford one.
At the hearing, the court determines if the proposed ward is incapacitated and, if so, to what extent he or she requires assistance. If the court determines that the ward is incapacitated, it then decides if the person seeking to be the guardian will be responsible in that role.
A guardian can be any competent adult – a spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). One advantage of a power of attorney is that you can name a person who will serve as your guardian in case you ever need one.
The guardian doesn’t even have to be a person – it can be a non-profit agency or a public or private corporation. If a person is found to be incapacitated and a suitable guardian can’t be found, courts in many states can appoint a publicly financed agency that serves this purpose.
In naming someone as a guardian, courts give first consideration to those who play a significant role in the ward’s life – people who are aware of and sensitive to the ward’s needs and preferences. If two individuals want to share guardianship duties, then a court can name them as co-guardians.
