10 Things Every Caregiver and Care-receiver Should Ask About Guardianship

September 24, 2008

10 Things Every Caregiver and Care-receiver Should Ask About Guardianship

If you are a family caregiver or a care-receiver, it is important that you understand your legal rights. Use this article to help start a discussion with your attorney or with the appropriate representative.

1. What is guardianship? Guardianship is a legal process used to insure that a person who is unable to make decisions on their own has someone specifically assigned to make decisions on their behalf.

Usually, as a last resort, a judge decides if the care-receiver is no longer capable of managing his or her life.

A person for whom a guardian is appointed is known as a ward.
2. What are the responsibilities of a guardian? The responsibilities of a guardian may include providing for the care and comfort of the ward.
In addition, the guardian must take care of the ward’s clothing, furniture and automobiles.

A guardian must secure services to help the ward return to self-care as soon as possible.
3. Who can petition the court for appointment of a guardian? A care-receiver on his/her behalf, a family member, or any person interested in the welfare of the prospective ward, can petition the court.
4. What if the care-receiver disapproves of the petition? The care-receiver should consult an attorney immediately.

The court can only appoint a guardian after clear evidence is presented at a hearing that the are-receiver is not capable of making informed decisions about his/her own care.
5. What rights does the care-receiver have when facing a potential guardianship? The care-receiver has the right to object to the guardianship, to the powers of the guardian, and to appointment of a particular person as guardian.

The care-receiver has the right to be present at the hearing, and represented by an attorney. The care-receiver has the right to present evidence on his/her own behalf.

The care-receiver has the right to cross examine all witnesses and to have a jury trial.
6. Do all guardians have the same powers? No. The court will tailor the powers of the guardian to the demonstrated need of the ward.

In some cases the court will allow the ward to control part of his/her property to encourage self-reliance.
7. Can a guardian be replaced? Yes. You or any person interested in the ward’s welfare, can petition the court to remove a guardian and appoint another.
8. How long does a guardianship last? Many times it lasts until death.

But the court must review the guardianship one year after it begins and then every three years.
9. What if the ward feels he/she no longer needs a guardian? The ward should send a letter to the judge of probate court requesting the guardianship be ended.

Or a petition can be filed by the ward or by anyone interested in his/her welfare. In either case, a hearing will be held.
10. How is a conservatorship different from a guardianship? Unlike a guardianship, a conservator cannot make healthcare decisions.

A conservator is a person or corporation appointed by probate court to manage another person’s property and financial affairs.

This differs from a guardian, who is appointed by probate court and makes decisions about the care of another person.

Take the time to talk with an attorney and communicate your intentions. Whether you are the care-receiver or the caregiver, legal planning is important.

Rebecca Colmer is an Eldercare Advocate, Author, Speaker, Publisher, and caregiver. You can find more caregiving tools and resources at her website:
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Tags : Caregiving, caregivers, eldercare, aging parents elderlaw, guardianship