A person may need a guardianship when the alternatives to guardianship are not available or will not address the individual's needs. Guardianship should be a last option because it seriously compromises personal autonomy and can be costly and time consuming.
A guardianship is a legal action that authorizes a surrogate decision maker for an individual that the court finds to be incapable of making his/her own decisions and/or managing his/her own personal and/or financial affairs. The legislative intent behind the guardianship law was that individuals' 'liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs.' The legal process involved is designed to balance the individual's civil liberties (i. e., the right to autonomy and self-determination) against the need to protect the individual.
A determination of incapacity is a legal and not a medical decision. It is based upon proof that the person does not have the capacity to manage their financial business or matters relating to their health, safety and well being. In the language of the law, the person must have demonstrated that he cannot or is not managing his 'person' or 'estate'. Age, eccentricity, poverty, or medical diagnosis alone is not enough to justify a finding of incapacity.
The court can appoint a guardian for the person, the person's financial estate, or both. A guardian for the person can be appointed when the individual is at significant risk of personal harm based on demonstrated inability to adequately provide for food, health, housing, or physical safety. A guardian for the estate can be appointed when the court determines that the individual is at significant risk of financial harm based upon a demonstrated inability to adequately mange his/her own property or financial affairs.
A guardianship can be full or limited. A full guardianship authorizes a guardian to make all the decisions allowed by law for an incapacitated person. A limited guardianship specifies limited areas where the guardian shall make decisions for the incapacitated person. The person may make all other decisions for him/herself. Ideally, the guardianship should be tailor-made to address only the individual's specific needs and deficits; an individual should retain as much control over his/her own life as possible.
A court can terminate a guardianship if the court finds that the person is no longer incapacitated and no longer needs a guardian. The court must have evidence to support this claim. A guardianship is also terminated if it has a set time limit or duties that are over, or when the incapacitated person dies.
You should report abuse or neglect by a guardian to the Adult Protective Services Division of the Department of Health and Social Services.
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