Guardianship Mistakes: Misunderstanding the Basics

Caring for an older adult with dementia or other serious illness brings on a whole new vocabulary and issues to learn about. Understanding guardianship and the legal rights of surrogate decision makers is usually at the top of the list.

“What is the difference between POA and Guardianship?”

We hear from stressed out family members almost daily who believe they need to file for guardianship over their loved one.  So what exactly is a guardianship? How do you know if you need to get one?

Guardianship is a legal process that allows a judge to appoint a guardian over another adult.

A family member would need to pursue guardianship if their loved one has diminished capacity, can no longer handle their own daily needs, is not able to make important decisions for themselves, and has not voluntarily allowed someone to help them.  The guardianship process is handled in court.

Guardianship is not for everyone.

Few families ever need to file for guardianship over their loved ones.  The problem, though, is that the situation can be confusing,  overwhelming, and exhausting. It can be difficult to understand what needs to be done to protect an adult dealing with dementia or other serious illness.

Guardianship is a tool of last resort.

Before pursuing guardianship, we must evaluate every other option available to help the older adult, or potential “ward.”  We begin with counseling the older adult and their concerned family members about voluntarily deciding to allow someone to help or to voluntarily make choices to improve their safety and well-being. Getting the older adult to allow someone else to help with decision-making is preferred to the court intervention.

Many older adults have completed a power of attorney or advance directive.

A power of attorney or advance directive allows a person to name a financial and healthcare agent to make decisions on their behalf. If this document was properly executed before incapacity, a power of attorney or advance directive may allow a surrogate decision maker the authority to help the older adult. This would eliminate the need for guardianship for most families. (More on powers of attorney here)

Experienced legal counsel is often a necessary step in the guardianship process.

It is often not easy to decide if a family has what is needed to help their older relative.  We highly recommend that families facing this decision meet with a Certified Elder Law Attorney who specializes in guardianship. Over the next few weeks, our blog posts will explore some of the common guardianship mistakes.

If you need personalized legal advice about guardianships in Georgia, please call Hurley Elder Care Law at (404) 843-0121 or contact us through our website

Important Terms:

• Guardian– A guardian is a person appointed by the court to make healthcare and other mostly non-financial decisions for someone who cannot make these types of decisions because of incapacity. Think of this as control of the physical person.
• Conservator– A conservator is a person appointed by the court to take care of someone’s finances when he or she cannot make these types of decisions because of incapacity.
• Next of Kin– The person who is most closely related to another adult as defined by state law. For most states, the order of next kin goes from spouse, to adult children, to parent(s), to siblings, etc.
• Power of Attorney– A legal document used to name someone to take over your medical and/or financial decisions. The person you name becomes your “healthcare agent” and/or “financial agent.”
• Trustee– The person(s) named in a trust to handle the assets in a trust and to carry out the instructions of the trust. The trustee’s responsibilities are outlined in the trust.
• Executor/Personal Representative– The person named in a will to handle the assets of a deceased person’s estate and to carry out the instructions in the will.
• Ward— An incapacitated adult that is cared for by a guardian or conservator.