The Pros and Cons of Guardianships for Parents of Impaired Adults

guardianship of elderly parentGuardianship offers additional options, but is hard to obtain, for a very good reason.

When we think of legal guardianship or conservatorship, several types of situations typically come to mind. We imagine instances involving a minor child whose parents may have died young, an elderly parent with dementia, or an adult who has been severely injured and can no longer take care of himself.

But a new category is evolving: an adult child whose decisions are impaired. This category has made headlines in recent years thanks to celebrities such as Britney Spears, whose father has been her court-appointed conservator since 2008. Spears records albums, performs worldwide, and is one of the most recognizable celebrities in America. Yet while she is under conservatorship, she does not have the right to make financial or legal decisions.

When a person is put under guardianship or conservatorship (the specific term used varies by state), that court-appointed fiduciary has the legal right to overrule the decisions the ward makes. The court-appointed fiduciary must report to the court and in certain circumstances, such as ordering antipsychotic medication, must prove to the court that the decisions are necessary.

It’s tricky to determine when it makes sense to appoint a guardian for a young adult whose decision-making is impaired. Many young adults make bad, and sometimes unsafe, decisions. These often involve alcohol or drug addictions. Even so, the key question is whether that is enough to justify taking away their personal liberties and overruling their rights.

Proceedings can divide families

An adversarial protective proceeding is fraught with emotional and legal peril, and the decision to seek a guardianship often divides families. Some family members may think a guardianship is the only alternative, while others might believe it is a mistake. The uncertain outcome of a proceeding complicates the situation. If the adult child “wins” and retains competence, then family relations can break down and any trust or confidence between the parent and adult child can evaporate.

It is noteworthy that in many states the protective proceedings of guardianship or conservatorship can be voluntary—the person involved can agree to have a legal guardian or conservator appointed. A distinct advantage to this type of protective proceeding is that it does not have to be adversarial. Twice in my practice, I have seen a person enter into a voluntary protective proceeding and then have that protection end in a few years, after which the person again took charge of his own legal and financial decisions. But voluntary guardianship isn’t always an option.

It is (and should be) difficult to put adults under guardianship or conservatorship against their will. Courts must tread slowly and carefully on this slippery slope. To complicate matters, many states define competence for legal purposes differently from competence for medical purposes. In all states, however, those seeking to place someone under involuntary guardianship or conservatorship must first produce ample medical evidence to support this course of action.

The person being put under guardianship or conservatorship receives advance notice of the court proceeding and has the right to object to it. Court proceedings, which are public, can take time and can be costly due to legal fees and related bills. If the proceedings involve finances, the court-appointed fiduciary must also file annual accountings.

Other options

A less severe option, and an important first step for many, is putting in place the basic estate planning documents—durable power of attorney (for financial purposes) and health care proxy (for medical purposes). These documents are important because they start the process of providing another person with the legal authority to act. One advantage of these documents is that they exist outside the court system. Therefore, any financial actions taken by the attorney-in-fact under the durable power of attorney or health care actions taken by the health care proxy are private.

These documents are also important for parents who wish to view the medical or financial records of their adult children. Once young adults reach the age of majority (age 18 or 21 depending on which state they live in), no one has the right to access their records without a Health Insurance Portability and Accountability Act (HIPAA) release. But a durable power of attorney and health care proxy can be used to waive HIPAA privacy rights. In most states, adults have the right in a durable power of attorney to designate whom they would name as their guardian/conservator if protective proceedings commence. The person nominated as a fiduciary has the right to be present in a protective court proceeding, if such a proceeding commences.

For many of our clients, dealing with an adult child who has a significant mental health or addiction issue can be a considerable challenge. In addition to the traditional paths of medical and psychiatric care, the appropriate legal options also should be explored. At a minimum, for any child at the age of majority, a health care proxy and a durable power of attorney should be executed. For more extreme situations, the legal protective proceedings of guardianship or conservatorship may be an answer. To fully explore the available courses of action, clients should consult an estate-planning or disability-planning attorney, a physician, and a psychiatrist.

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

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