Guardianship is a legal procedure that allows an individual to make decisions for another person. It removes a person’s civil rights and privileges by assigning control of a person’s life to someone else designated through the court. Guardianship may be necessary due to age, disability, or injury.
Although the state instructs a court to “design a guardianship to encourage the development or maintenance of maximum self-reliance and independence of the incapacitated person,” it is not uncommon for courts to create complete guardianships, which deprive persons with disabilities of the right to make fundamental decisions about their own lives.
Guardianship provides for the person’s care and management of their money while preserving, to the largest scale possible, that person’s independence and right to make decisions affecting their life.
For instance, Texas courts can appoint a guardian with full or limited authority over an incapacitated person. However, guardianship should be only as restrictive as indicated by the person’s mental or physical limitations; and as necessary to promote and protect their well-being, per the Texas code.
Who Cannot Be a Guardian?
A person cannot be appointed a guardian if:
- The person is incompetent;
- The person is a minor;
- The person has filed for bankruptcy within the last 7 years. The court may appoint a person who has filed for bankruptcy if the guardianship is over the person only, or if there are no other suitable candidates to serve as guardian, the court may order additional safeguards to protect the person’s money;
- If the person has been convicted of a felony, the court may appoint a person convicted of a felony, but only if the court determines that the conviction should not disqualify the person from serving as a guardian;
- The person has been suspended or disbarred from the practice of law, accounting, or any other profession that involves the management of money and requires a state license and;
- The person has committed a crime of domestic violence, abuse, neglect, exploitation, isolation, or abandonment of a child, spouse, parent, or another adult. The court may select someone who has committed such a crime if the court finds it is in the best interest of the protected person to appoint that person as the guardian;
What if Multiple People Want to be the Guardian?
If two people agree to share the duties of guardianship, they can file one set of papers to request the court to be appointed as co-guardians. However, the court chooses the most suitable person if different people want to be separately appointed guardians.
To determine who is the most suitable, the court considers the following factors:
- Whether the protected person, their spouse or their parent nominated a person to be the guardian in a will or another document in writing;
- A child’s preference (for child guardianships) if the child is 14 years of age or older;
- The relationship to the proposed protected person (in order of preference: spouse, adult child, parent, adult sibling, grandparent or adult grandchild, aunt/uncle/adult niece/adult nephew);
- A recommendation from a Child Protection Agency representative (for child guardianships) and;
- Any request for the appointment of any other interested person that the court determines appropriate.
What if No One Qualifies as a Guardian?
The Office of the Public Guardian can serve as the guardian. The Office of the Public Guardian is court-appointed to serve as the guardian when no friends or family members are willing or able to serve as a guardian for an individual.
How Have the Regulations been Impacted Since COVID- 19 Pandemic?
At least four jurisdictions have chosen to enact Covid-19 legislation that directly relates to guardians. The District of Columbia enacted a new requirement for guardians to inform at least one relative of the person within 48 hours of a major change in a given scenario, including admission to a medical facility, transfer to acute care, or placement on a ventilator.
Furthermore, New York requires residential healthcare facilities to prepare and publish pandemic emergency plans, including a communication plan for families and guardians. Another state, New Jersey, authorized legal guardians to request a long-term care facility develop an individualized visitation plan for a resident. Additionally, North Carolina gathered funds for COVID-19 rapid tests for family members or guardians seeking to visit residents of congregate care facilities.
Since 2011, states have enacted approximately 343 adult guardianship bills (as of December 31, 2020) – making amendments to the code provisions in the procedure. Many statutory changes have advanced guardianship reform, including safeguarding rights, addressing abuse, and promoting less restrictive options. The real difficulty lies in turning good law into good practice. Recently, there also have been changes regarding who may serve as the guardian.
For instance, in Oklahoma, they defined a representative of a resident of a nursing facility as a court-appointed guardian, and if there is no guardian, a relative, or other person designated in writing by the person. Practically it means that owners or employees of nursing care facilities shall not serve as guardians unless they are relatives of the resident.
Moreover, Missouri has now authorized courts and the department of social services to require fingerprinting of guardians and conservators for identification and criminal history information for adequate background checks for the guardians. Another state, Mississippi, now requires anyone considered for a guardian to disclose to the court whether they are or have been a debtor in a bankruptcy proceeding or have been convicted of a felony, a crime involving dishonesty, neglect, violence, or the use of physical force, or other relevant crimes.
A 2008 National Public Guardianship study also released that 44 states have statutory provisions on public guardianship or guardianship of last resort. According to the study, 27 states have “explicit schemes” that refer specifically to public guardianship and establish a public guardianship program or office. However, 18 states have “implicit schemes” (some states have more than one system) that address the guardian of last resort role—for example, assigning a governmental agency to serve if no one else is available.
Colorado now requires the office of public guardianship to request a Colorado Adult Protective Services data system check before hiring a new employee. The state of Florida has not mandated that the court waive any court costs or filing fees for certain proceedings involving public guardians and prohibits them.
However, this excludes those that show good cause; then, the court may appoint the attorney who has represented the petitioner within three calendar years of the appointment as guardian or conservator for the respondent. The attorney’s law firm employees are also banned from serving as guardians. Lastly, Indiana now mandates that the Volunteer Advocates for Seniors and Incapacitated Adults (VASIA) programs submit a person-centered care plan in progress reports to the court.
When Do I Need to Contact a Lawyer?
If you have any questions regarding guardianship eligibility laws in your state, it is important to research them to understand the policies. It is recommended to seek professional legal assistance from a local guardianship attorney if any issues arise.
An attorney in your area can provide you guidance for your specific case and legal needs. Also, if there are any changes to the law that might affect your rights, your attorney can keep you updated.