What is a Guardianship?
A guardianship is a determination by the Court that a person (proposed ward) is incapacitated. The judge must make this decision based upon clear and convincing evidence. “Incapacitated person” means an individual who is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance. See Minnesota Statute 524.5-102(6) for more details.
The first step in determining if a proposed ward needs a Guardian is to evaluate how much she participates in the decisions that directly affect her life. To petition the Court for full powers of guardianship, you must report how much assistance the proposed ward needs. Details specific to the proposed ward’s needs must be included in the Petition for the Appointment of a General Guardian. For Minnesota residents, a Petition can be found at this Court Forms website.
Why is a Guardianship needed?
From the vantage point of an incapacitated person, it is necessary because without a guardianship her needs may not be met. Unless there is someone to advocate and apply for the services a person with a disability needs, that person may never receive the benefit of those programs. For example, if there is no guardianship in place, the Ward may never apply for and receive Supplemental Security Income or Medical Assistance. There are several steps to obtaining and maintaining those benefits, which may or may not be pursued without the assistance of a Guardian. Or if a person does not fully understand the terms of a contract but signs it anyway, she can be held liable for the terms of the agreement she signed.
From the perspective of the parent, sibling or child who may be trying to assist a loved one without a guardianship in place, it may be impossible to obtain any information about the proposed ward. Doctors, social workers, teachers and employers will all require a release of information signed by the proposed ward before releasing information to you. (And if the doctor feels the proposed ward does not have the ability to understand what she is signing, the doctor may not release the information at all.) The would-be guardian can run into many road blocks when trying act without a guardianship in place.
General versus Limited Guardianship: What is best?
- place of abode,
- care, comfort and maintenance needs,
- clothing, furniture and other personal effects,
- health care,
- supervisory authority, and
- government benefits.
If the proposed ward does not need assistance in every area above, then consider petitioning the Court for a Limited Guardianship.
Whether to pursue a Limited Guardianship or one granting General (or “full”) Powers depends on a number of factors. Each case must be determined on an individual basis, and we are obligated to choose the path that offers no more restrictions than absolutely necessary. Generally speaking, if someone has been tested to have an IQ below 70, or an Individualized Education Plan (IEP) or her Neuropsychological Evaluation says she functions at a level of a 7 year old, then a full guardianship should be pursued. The same would be true for someone who has Alzheimer’s, since their capacity is only going to diminish further, rather than improve. However, if the diagnosis of is autism, the range of abilities can vary quite a bit. It is best to look at each power individually to determine which ones are indeed necessary for the Guardian to have.
For a Limited Guardianship, you only need to give examples of incapacity for those specific areas the guardianship is needed. For instance, if your two main concerns are health care decisions and contracts, then petition the Court for those two powers. You must give an example which illustrates why each power is needed. Regarding contracts, provide information pertaining to the proposed ward’s reading level and reading comprehension. Would the proposed ward ask for assistance if she did not understand something, or would she pretend she understood? And for establishing abode, would she be able to independently explore living options? Would she understand discussions about leases and rental agreements? Would the abode provide the necessary support and structure needed to be successful in the community?
Keep in mind that for some individuals, a guardianship does not need to be permanent. The Ward’s needs may change over the years, and she may be able to assume more responsibility for herself and demonstrate the ability to make good decisions. That is one of the reasons why the Court requires the Guardian to complete a Personal Well-Being Report annually.
It is also necessary for the Guardian to serve the “Annual Notice of Right to Petition for Restoration to Capacity” to the Ward as well as to all Interested Parties annually. Although Restoration to Capacity can be sought at any time, the annual review and notice just serves as a reminder to all that it is a possibility.
Why not a Health Care Directive and Power of Attorney? Isn’t that enough?
This is a frequent question of potential clients. There are alternatives to guardianship, but here I will only discuss why I would not recommend the following: A Health Care Directive (HCD) and a Power of Attorney (POA). These two documents require the signature of a person who is competent enough to execute them in the first place. HCD’s and POA’s are designed for people who currently have capacity (to understand what they are deciding and signing) who may at some point become (permanently or temporarily) incapacitated. Also, the disadvantage to HCD’s and POA’s is that they can be revoked at any time. All you have to do is tear it up and it is no longer effective. A guardianship remains in place even if the Letters of Guardianship are shredded, because it is on record with the Court. As a Guardian, you oversee the needs of the Ward – and the Court oversees you.
If you have questions about a guardianship, be sure to contact an attorney in your area.