Introduction

Guardianship, also, referred to as conservatorship, is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.

Alternatives to Guardianship

Alternatives to guardianship may include:

• Representatives or substitute payees.
• Case/care management.
• Health care surrogacy.
• Trusts.
• Durable powers of attorney for property.
• Durable powers of attorney for health care.
• Living wills.
• Community advocacy systems.
• Joint checking accounts.
• Community agencies/services.

Rights that Might be Affected

A good guardian will take into account the wishes and desires of the ward when making decisions about residence, medical treatments, and end-of life decisions. The courts will remove only those rights that the proposed ward is incapable of handling.

When the courts appoint a guardian, the following rights of the ward may be removed. These rights may include the right to:

• Determine residence.
• Consent to medical treatment.
• Make end-of-life decisions.
• Possess a driver’s license.
• Manage, buy, or sell property.
• Own or possess a firearm or weapon.
• Contract or file lawsuits.
• Marry.
• Vote.

Due Process

Because establishing guardianship is a legal process that involves the removal of the individual’s rights, considerable due process protection often exists when the guardianship is established. They include:

• Notice to the individual of all proceedings.
• Representation of the individual by counsel.
• Attendance of the individual at all hearings/court proceedings.
• Ability of the individual to compel, confront and cross examine all witnesses.
• Allowance of the individual to present evidence.
• Appeal of the individual to the determination of the court.
• Presentation of a clear and convincing standard of proof.
• The right of the individual to a jury trial.

Individual rights removed and due process rights may vary from state to state, the final authority is the state statues where the person with the disability lives. In any type of guardianship the court may limit the guardian’s authority. The guiding principle in all guardianship is that of least intrusive measures to assure as much autonomy as possible. The guardian’s authority is defined by the court and the guardian may not operate outside that authority. A guardian may be a family member or friend or a public or private entity appointed by the court.

Guardianship of the Person

When the court appoints a guardian of the person, the guardian may have the following responsibilities:

• Determine and monitor residence.
• Consent to and monitor medical treatment.
• Consent and monitor non-medical services such as education and counseling.
• Consent and release of confidential information.
• Make end-of-life decisions.
• Act as representative payee.
• Maximize independence in least restrictive manner.
• Report to the court about the guardianship status at least annually.

Guardianship of the Estate or Property

“Estate” is defined as real and personal property, tangible and intangible, and includes anything that may be the subject of ownership.

When the court appoints a guardian of the estate, the guardian is assigned the following responsibilities:

• Marshall and protect assets.
• Obtain appraisals of property.
• Protect property and assets from loss.
• Receive income for the estate.
• Make appropriate disbursements.
• Obtain court approval prior to selling any asset.
• Report to the court or estate status.

The Professional Guardian’s Duties and Responsibilities

The professional guardian does not take the place of a family member, although the guardian may form an emotional bond with the incapacitated person. The professional guardian will coordinate and monitor professional services needed by the incapacitated person, such as selecting a caretaker, in-home care, and other services.

Funds that belong to the ward remain the property of that person, and do not become property of the guardian. All funds are accounted for and kept separate from the guardian’s personal funds. The estate guardian acts on behalf of the incapacitated person only to the extent of the person’s assets. For each person that a professional guardian serves, the guardian stands ready to give an accurate accounting of those funds to the court. The professional guardian is an advocate and acts on behalf of the incapacitated person only to the extent of the court order.

Guardianship is Not a Long-Term Arrangement

The goal of effective guardianship is to be able to restore the rights of the individual who, for whatever reason, has had some of them removed by a court after due process. It is true that in many instances once a guardianship has been initiated by a court, it is in place until the incapacitated person dies. However, an annual review and assessment will monitor the need for maintaining or terminating a guardianship, and alert the court to a potential restoration of some or all of the incapacitated person’s rights.

Conclusion

This brief summary does not attempt to cover all of the aspects of guardianship. Especially in your local area where the law and local court rules may vary from county to county, or from state to state, it is a good idea to make inquires as to what is appropriate for your specific circumstances.- Consult your local professional elder law advocate. or contact the National Guardianship Association. Please do not call the NGA business office seeking legal advice or direction concerning a specific case. If you require help, we encourage you to identify competent professionals in your area to assist you with your concerns and do suggest that you identify a practitioner in the "Find a Guardian" section of the NGA website that serves your area of interest. 

This guide provides practical advice on how to deal with the effects financial difficulties can have on your physical and mental health is from the Substance Abuse and Mental Health Services Administration (SAMHSA).

Possible Health Risks

Economic turmoil (e.g., increased unemployment, foreclosures, loss of investments and other financial distress) can result in a whole host of negative health effects - both physical and mental. It can be particularly devastating to your emotional and mental well-being. Although each of us is affected differently by economic troubles, these problems can add tremendous stress, which in turn can substantially increase the risk for developing such problems as:

• Depression
• Anxiety
• Compulsive Behaviors (over-eating, excessive gambling, spending, etc.)
• Substance Abuse

Warning Signs

It is important to be aware of signs that financial problems may be adversely affecting your emotional or mental well being --or that of someone you care about. These signs include:

• Persistent Sadness/Crying
• Excessive Anxiety
• Lack of Sleep/Constant Fatigue
• Excessive Irritability/Anger
• Increased drinking
• Illicit drug use, including misuse of medications
• Difficulty paying attention or staying focused
• Apathy - not caring about things that are usually important to you
• Not being able to function as well at work, school or home

Managing Stress

If you or someone you care about is experiencing these symptoms, you are not alone. These are common reactions to stress, and there are coping techniques that you can use to help manage it. They include:

• Trying to keep things in perspective - recognize the good aspects of life and retain hope for the future.
• Strengthening connections with family and friends who can provide important emotional support.
• Engaging in activities such as physical exercise, sports or hobbies that can relieve stress and anxiety.
• Developing new employment skills that can provide a practical and highly effective means of coping and directly address financial difficulties.

Getting Help

Even with these coping techniques, however, sometimes these problems can seem overwhelming and you may need additional help to get through "rough patches." Fortunately, there are many people and services that can provide help. These include your:

• Healthcare provider
• Spiritual leader
• School counselor
• Community health clinic
• The Counseling Center - 24 hours per day at (330) 264-9029 

If you need help finding treatment services you can access our Mental Health Services Locator for information and mental health resources near you. Similarly, if you need help with a substance abuse problem you can use our Substance Abuse Treatment Facility Locator.

Specific help for financial hardship is also available, on issues such as:

• Making Home Affordable
• Foreclosure
• Reemployment
• Financial assistance

There are many other places where you can turn for guidance and support in dealing with the financial problems affecting you or someone you care about. These resources exist at the federal, state and community level and can be found through many sources such as:

• Federal and state government
• Civic associations
• Spiritual groups
• Other sources such as the government services section of a phone book

Suicide Warning Signs

Unemployment and other kinds of financial distress do not "cause" suicide directly, but they can be factors that interact dynamically within individuals and affect their risk for suicide. These financial factors can cause strong feelings such as humiliation and despair, which can precipitate suicidal thoughts or actions among those who may already be vulnerable to having these feelings because of life-experiences or underlying mental or emotional conditions (e.g., depression, bi-polar disorder) that place them at greater risk of suicide.

These are some of the signs you may want to be aware of in trying to determine whether you or someone you care about could be at risk for suicide:

• Threatening to hurt or kill oneself or talking about wanting to hurt or kill oneself
• Looking for ways to kill oneself
• Thinking or fantasying about suicide
• Acting recklessly
• Seeing no reason for living or having no sense of purpose in life

If you or someone you care about are having suicidal thoughts or showing these symptoms SEEK IMMEDIATE HELP. Contact your healthcare provider, mental health crisis center, hospital emergency room or the National Suicide Prevention Lifeline at1-800-273-TALK (8255) for help.

Other Steps You Can Take

• Acknowledge that economic downturns can be frightening to everyone, but that there are ways of getting through them - from engaging in healthy activities, positive thinking, supportive relationships, to seeking help when needed from health professionals.
  
  
• Encourage community-based organizations and groups to provide increased levels of mental health treatment and support to those who are severely affected by the economy.
  
  
• Work together to help all members of the community build their resiliency and successfully return to healthy and productive lives.

For further information on mental health or substance abuse issues please visit The Substance Abuse and Mental Health Services Administration (SAMHSA).