In some situations, a person can be legally designated to make legal decisions on behalf of another.
This can happen for a variety of reasons. For example, a family member may be incapacitated, or a parent may become unable to care for a child due to illness. In those situations, guardianship can be an option.
[READ: How to Set Up a Power of Attorney.]
What Is Guardianship?
Guardianship is a legal process where a court can designate someone to represent the interests of someone else.
For example, legal guardianship is an option available to parents who are absent due to illness or incarceration. In these cases, it allows parents to designate a caregiver for their children and give them legal rights, according to the Administration for Children and Families.
A guardian can also be appointed for an adult. In this case, someone else takes over the ability to legally make decisions for someone who is incapacitated, defined by factors including lacking the ability to meet essential requirements for their health and safety or make decisions, according to the American Bar Association.
“Oftentimes, guardianship is created only regarding some aspects of a person’s life,” said Lynn S. Muster, visiting professor of practice at New England Law Boston, in an email. For example, someone could feed and dress themselves but not be able to prudently handle finances. In this case, a guardian could be designated to help manage their finances.
For an emergency guardianship, most states require that a person’s lack of decision-making ability means that their life or health could be at imminent risk. It can also be considered if the inability to manage finances puts them at risk, according to the ABA. How long an emergency guardianship lasts varies by state.
A person must be found to be incapacitated and their needs cannot be met by less restrictive means.
Having a disability is not itself a reason to have a guardianship, according to the Illinois Guardianship and Advocacy Commission, nor is being elderly.
[Read: 5 Reasons to Make an Estate Plan.]
What Are the Challenges of Guardianship?
Guardianship is a weighty decision as it takes away people’s ability to make decisions for themselves. It should be undertaken thoughtfully, says Elyn Saks, a professor of law, psychology, psychiatry and the behavioral sciences at the University of Southern California Gould School of Law.
“We want to limit guardianship as much as we can if the person can make some decisions,” Saks says.
“Giving people decision-making authority shows them decency and dignity and respect,” Saks says. “If you allow people to make decisions for themselves, that’s an important part of feeling good about yourself, feeling empowered.”
A guardian can make a decision about another individual’s residence, medical treatment, or buying and selling of property, according to the Department of Justice.
“In all situations, a guardian is primarily meant to act in the person’s best interests, but also should consider what the person would want if that person were able to make their own decisions,” Muster said. “For example, a guardian of another adult’s medical and/or end-of-life decisions should consider the adult’s religious and other beliefs when deciding whether extraordinary life-saving measures should, or should not, be utilized.”
[How Conservatorships Can Help or Hurt a Loved One]
What Are Alternatives to Guardianship?
Experts say that guardianship should only be used in limited ways, and alternatives should be considered.
Lawyers should be aware of alternatives, according to the American Bar Association. Those who might consider guardianship should first determine whether day-to-day living support could reduce the need for guardianship, according to the ABA.
Other alternatives include designating a health care proxy to make medical decisions or giving someone else power of attorney, if the individual in question becomes unable to make financial or legal decisions, Muster said.
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What Is Guardianship? originally appeared on usnews.com
