Overview of Guardianship

Guardianship, also referred to as conservatorship, is a legal process utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.

Alternatives to Guardianship may include:

• Representatives or substitute payees
• Case/care management
• Health care surrogacy
• Trusts
• Durable powers of attorney for property
• Durable powers of attorney for health care
• Living wills
• Community advocacy systems
• Joint checking accounts
• Community agencies/services

Rights that Might be Affected

A good guardian will take into account the wishes and desires of the ward when making decisions about residence, medical treatments, and end-of life decisions. The courts will remove only those rights that the proposed ward is incapable of handling. When the courts appoint a guardian, the following rights of the ward may be removed:

• Determine residence
• Consent to medical treatment
• Make end-of-life decisions
• Possess a driver’s license
• Manage, buy, or sell property
• Own or possess a firearm or weapon
• Contract or file lawsuits
• Marry
• Vote

Due Process

Because establishing guardianship is a legal process that involves the removal of the individual’s rights, considerable due process protection often exists when the guardianship is established. They include:

• Notice to the individual of all proceeding
• Representation of the individual by counsel
• Attendance of the individual at all hearings/court proceedings
• Ability of the individual to compel, confront and cross examine all witnesses
• Allowance of the individual to present evidence
• Appeal of the individual to the determination of the court
• Presentation of a clear and convincing standard of proof
• The right of the individual to a jury trial

Individual rights removed and due process rights may vary from state to state, the final authority is the state statues where the person with the disability lives. In any type of guardianship the court may limit the guardian’s authority. The guiding principle in all guardianship is that of least intrusive measures to assure as much autonomy as possible. The guardian’s authority is defined by the court and the guardian may not operate outside that authority. A guardian may be a family member or friend or a public or private entity appointed by the court.

See also: Guardianship of a person and guardianship of an estate.

Areas of Concentration