Guardianship

If a person becomes incapacitated and cannot make medical and treatment decision, a court proceeding may be necessary to appoint a family member or other person to help (i.e. a “Guardian”). The proceeding will be conducted in the probate court. If an incapacitated person has a written Patient Advocate Designation having a probate court-appointed Guardian may be avoided. At the very least a person nominated in a Patient Advocate Designation will, if probate is otherwise necessary, be appointed by the probate judge. Thus, a protracted hearing and other problems determining who should be guardian will at least be avoided.

Many people just need a little help with personal care – someone to organize their medical care or see that their living conditions are reasonable. Other people need more constant and direct supervision, in which case the guardian is responsible for arranging for and overseeing care in a nursing home, an assisted living facility, or a home setting. A guardian is responsible for making decisions regarding an incapacitated person’s medical treatment, personal affairs and living arrangements.

Consideration also must be given to the scope of the guardian’s authority, the rights to be retained by the incapacitated individual, and the oversight of the care given to him or her. Guardians must submit an annual report to the court regarding the incapacitated person’s health condition, and every few years the court will assign an attorney to review the guardian’s conduct to ensure the incapacitated individual is being cared for properly. In reality, however, there is little direct supervision of the guardian. So, having the right person appointed may be the difference between the incapacitated individual receiving quality care, or being neglected.