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The guardianship of an adult, in which a judge appoints an individual to make choices for a person over 18, is appropriate when the adult lacks capacity. Capacity is a general legal term that refers to a person’s cognitive ability. For instance, when people lack capacity to make a will, they cannot execute a valid will because they would not understand the document’s contents.
In the context of adult guardianship, capacity is an individual’s ability to make decisions to care for themselves. When a court finds that an adult cannot make personal or financial choices, it can appoint a guardian to help the person. Depending on the type of arrangement, the guardian can decide what kind of care the adult receives and where the adult lives, and may also manage the adult’s finances.
State courts examine several factors to determine whether a person is incapacitated and needs a guardian. According to The Elder & Disability Law Center, characteristics that suggest incapacity can include the following:
Courts decide whether a person needs a guardian on an individual basis. Depending on the adult’s needs, the arrangement can be more — or less — restrictive. Capacity exists on a spectrum. So, a person can have the ability to make some decisions, but may need help in specific areas.
The scope of incapacity can impact how extensive the guardianship is. Courts can order full guardianship when adults cannot handle all personal and financial decisions.
Yet many with decision-making challenges retain some capacity or only have difficulties with certain choices. For these individuals, total guardianship would overly restrict their independence.
When people require assistance with particular aspects of life but are self-sufficient in other domains, a limited guardianship may be fitting. Limited guardianship restricts the guardian’s authority to specific types of decisions, such as health care or housing, while the ward otherwise remains autonomous.
In other cases, the type of incapacity impacts the type of guardianship. For instance, some people may struggle with financial decisions, but understand health care choices. In those cases, the court can order an arrangement where a trusted individual helps with money only, such as a guardianship of the estate or a financial conservatorship.
Some people struggle with decisions but can still express their wishes and understand alternate courses of action. They might need someone to explain their options clearly, or they might only be capable of making decisions at certain times of day. For instance, those with dementia may experience more clarity in the morning compared to the evening.
Full guardianship that completely removes their autonomy would be improper for individuals with some decision-making capacity. In these cases, an alternative to guardianship, such as supported decision-making, could be a better fit. In instances where people have some capacity, they may be able to execute power of attorney documents, selecting trusted persons to act as their financial and health care agents.
If you or your loved one are exploring guardianship, speak with a special needs planner in your area to learn more about the options and alternatives available to you.