Establishment of Guardianships

The establishment of guardianships requires several considerations.  Particular issues that must be addressed include the need for emergency powers, the use of less restrictive alternatives, the determination of capacity, and procedural protections.

Emergency Powers

Once the jurisdiction and venue is determined, judges must decide whether the situation warrants emergency powers that will enable an individual to act as guardian on a temporary basis.  Temporary guardianships are generally granted by the courts to achieve a specific purpose for a certain amount of time.  While state statutes vary, emergency temporary guardianships require that petitioners show that the respondent needs immediate services to protect against serious injury, illness, or death.  Once the purpose is accomplished, the temporary guardianship is terminated.  If competency cannot be restored, a limited or full guardianship can be granted after a full hearing.

•  State statutes on the establishment of emergency guardianship (American Bar Association)

Use of Less Restrictive Alternatives

Because of the loss of individual rights in full guardianships, alternatives that protect certain rights and decision-making powers should be explored.  Alternatives to guardianship are determined by the availability of state and local resources, as well as interpersonal connections to family, friends, and support networks.  There are a number of less restrictive alternatives, including: representative payeeship or authorized representative, trust, conservatorship, adult protective services for adults with developmental disabilities, adult protective services for the elderly, long-term care ombudsman, protection orders, and powers of attorney.

Determination of Capacity

The American Bar Association and the American Psychological Association partnered to produce Judicial Determination of Capacity of Older Adults in Guardianship Proceedings.  The handbook discusses six pillars of capacity (medical condition, cognition, everyday functioning, values and preferences, risk and level of supervision, and means to enhance capacity.  The steps to determining capacity are (1) screen case, (2) gather information, (3) conduct hearing, (4) make determination, and (5) ensure oversight.  The handbook includes model orders and forms in the appendix.   Visit our capacity section for a more thorough discussion.

Procedural Protections

Procedural protections are critical in guardianship cases.  The National Academy of Elder Law Attorneys (NAELA), in their public policy guidelines, supports the following aspects of procedural due process concerning adult guardianship: (1) timely notice in plain language, including information about the rights that are subject to being lost and the individual’s rights at the hearing; (2) requirement for the individual to be present at the hearing unless there is good cause, and provisions for hearing accommodations; (3) mandatory court appointment of counsel at or before notice to act as zealous advocate for the individual, and court payment of fees for indigent respondents; and (4) hearing rights including right to compel attendance of witnesses, cross-examine, request a jury trial, and appeal the decision.

Lists of related state statutes, compiled by the American Bar Association

Key Issues

The establishment of a guardianship provides a legal venue for individuals—professional or family—to exercise complete authority over another person.  For this reason, the court’s responsibility is to ensure that power is not abused.  Two key issues that the court must consider in the guardian and conservator appointment include the role of undue influence and abuse; and the use of mediation.  Highlighted recommendations are from Guarding the Guardians: Promising Practices for Court Monitoring. 

Undue Influence and Abuse

In brief, undue influence involves one person taking advantage of a position of power over another person (see undue influence discussion).  In guardianship cases, the incapacitated person has lost his or her rights and is particularly vulnerable to abuse, neglect, and the exploitation of assets.   Professional, public, and family guardians have the opportunity to exercise undue influence for personal gain. 

Despite the fact that the state may have few requirements for family and professional guardians, judges should exercise their discretion to minimize the possibility that the incapacitated person will be subjected to abuses.  The capacity hearing itself may indicate that undue influence is being exercised in an effort to establish the guardianship.  Once a guardianship is deemed necessary, careful consideration of the proposed guardian’s credit histories, criminal background checks, and history with adult protective services is necessary—the court may want to establish guardian/conservator qualifications that take these background checks into consideration.  Should a guardian fail to provide reports or engage in suspicious behavior, the court may appoint a court investigator or guardian ad litem (GAL) to investigate the matter. 

Mediation as a Tool

Guardianship and conservatorship cases often involve family disputes regarding who has the decision-making power over the incapacitated person and whether those decisions are appropriate.  The use of mediation, which is voluntary and confidential, may be helpful in some cases.  The Center for Social Gerontology evaluated mediation as a means of resolving adult guardianship cases and found that mediation was successful in reaching consensual agreement in three of every four cases.  An evaluation of Alaska’s mediation program for guardianships and conservatorships concluded that “mediation for adult guardianship cases with significant conflicts appeared to be successful in most instances.”

Several state court systems and individual courts have established mediation programs that can be applied to adult guardianship and conservatorships.

Additional Online Resources

National map of guardianship statutes