FREQUENTLY ASKED QUESTIONS
IF SOMETHING HAPPENS TO ME, CAN’T MY NEAREST RELATIVE MAKE MEDICAL DECISIONS FOR ME?
In the event of an emergency, family members often react differently. An emergency is a highly emotional time for most people. Family members often do not see eye to eye about the best course of action. Family members may compete for the role of the decision maker. When a person has not previously signed a Patient Advocate Designation or a Power of Attorney, medical professionals do not know who to take direction from. The best way to make sure your wishes are carried out is to write your wishes for future medical care in a Living Will and choose the person who makes medical decisions for you in a Patient Advocate Designation.
WHEN IS GUARDIANSHIP APPROPRIATE?
When a person is unable to make informed decisions due to a medical condition, an injury, mental illness, chronic intoxication or some other type of cognitive impairment, a guardianship should be established to protect the vulnerable person and to give legal authority to the guardian to make medical decisions. The guardian can be a family member, a friend or a professional who is suitable and willing to make medical decisions on the impaired person’s behalf.
WHAT IS THE PROCESS FOR GUARDIANSHIP?
Petition: A petition for the appointment of a guardian must be filed in the county where the impaired person lives or is staying. A petition is a 2 page court form that starts the guardianship process.
Guardian Ad Litem: Once the Petition is filed in the Probate Court, the court appoints a Guardian Ad Litem. A Guardian Ad Litem is not a Guardian. This title is unfortunate because it causes confusion. The GAL is really an investigator who is assigned by the court to go out and meet the impaired person and inform them that a petition has been filed, to inform them of their legal rights, and to make observations about whether the person is capable of making their own decisions and to prepare a written report to provide the Judge with more information.
Hearing: Next, there is a hearing in Court where the parties tell the judge why they are requesting guardianship. The person for whom the guardianship is being sought has the right to agree or object to guardianship. If the person agrees to guardianship and there is sufficient evidence to show that the person is unable to make informed decisions and that the person nominated to be guardian is suitable, the Court grants the guardianship and a Letter of Guardianship is provided by the Court. The Letter of Guardianship is then used to verify to others that the Guardian has been given the legal authority to act on behalf of the impaired person.
If the person objects to guardianship, the Court will appoint a lawyer to represent them, and schedule another hearing during which time evidence is presented. After hearing the evidence presented by the parties, the judge will decide if the person needs a guardian and who should serve as the guardian.
WHEN A PERSON HAS BEEN INJURED AND IS UNABLE TO MAKE THEIR OWN MEDICAL DECISIONS, CAN THEY SIGN A POWER OF ATTORNEY TO AVOID GOING TO COURT?
No. Once a person is impaired to the extent that they are not able to make informed decisions, they are not legally competent to sign a Power of Attorney. This is similar to the requirement of being of “sound mind” in order to sign a will.
If a person’s thinking becomes impaired and they did not previously sign a Power of Attorney or designate a Patient Advocate, they must go to Court. In this way, the Court will examine the medical evidence and conduct a hearing in which all interested parties may be heard in order to protect the rights of the impaired person. The requirement to go to Court is to prevent exploitation or manipulation of the impaired person.
WHAT IS THE DIFFERENCE BETWEEN A GUARDIAN AND A CONSERVATOR?
A guardian makes decisions for the care of the impaired person and ensures that their basic needs such as food, shelter and clothing are provided. These decisions include finding the appropriate type of housing, arranging medical care and working to maintain or improve a person’s quality of life.
A conservator has the legal responsibility to protect a person’s money and other assets. The conservator will manage a person’s finances to make sure that the person’s needs are met, that their bills are paid, that their investments are protected, that they are getting all the governmental resources to which they are entitled, and make sure that no one steals their money.
CAN ANYONE BE APPOINTED AS A GUARDIAN OR A CONSERVATOR?
In order to serve as a guardian or a conservator, a person must be suitable and willing to accept the responsibility. In order to assess a person’s suitability, the Court may perform a background check for criminal history or poor credit. The Court will also want to know if the potential guardian or conservator has ever served as guardian or conservator for another person in the past, whether they were ever removed as a guardian or conservator, and whether they have ever been the subject of a Child Protective Services complaint or an Adult Protective Services complaint. Essentially, the Court is trying to make sure that the person is trustworthy and responsible in an effort to protect the impaired person.
IS GUARDIANSHIP PERMANENT?
No. If a person’s mental status improves to the point that they can make informed decisions, and they have a doctor who agrees that they have made sufficient improvement, a petition will be filed to terminate guardianship. The Court will schedule a hearing and listen to the interested parties. If the judge agrees that the person has improved and can make informed decisions, the judge will terminate the guardianship.
WHAT IF THE GUARDIAN OR CONSERVATOR IS NOT DOING A GOOD JOB; CAN THEY BE REMOVED?
The Court supervises guardians and conservators. If anyone is aware of inappropriate conduct by a guardian or conservator, that person may file a petition to bring the issue to the Courts attention. The Courts also conduct periodic guardianship/conservatorship reviews to make sure that the guardianship or conservatorship is going well and that the impaired person’s needs are being met. If the Court finds that there has been misconduct by the guardian or conservator, the Court may remove that person and order an appropriate remedy.