Guardianship 101: What You Need to Know Now

Has a loved one recently been diagnosed with dementia or Alzheimer’s disease? Here’s what you need to know now:

STEP ONE: If you’re concerned as to whether or not the individual in question is capable of making rational, clear-headed decisions about their health care, daily living decisions or placement decisions, you first need to determine if they’ve executed a Health Care POA (Power of Attorney). This document allows an individual to decide for his or her self who can serve as their agent in handling their medical-related issues if and when they are unable to do so on their own. This document should not be confused with a General Power of Attorney which addresses banking and other transactional business (and is discussed in other posts on this blog). If your loved one has not executed a Health Care POA, proceed to STEP TWO. If they have, please congratulate them on being prepared as they’ve just saved themselves (and you) a major hassle. Only proceed to STEP TWO if the person they nominated is unable or unwilling to serve or you have reason to believe they are taking advantage of their powers.

STEP TWO: Before approaching the Probate Court or your attorney to begin the Guardianship process, it’s first wise to consult with the loved one's medical provider and personal attorney to determine whether or not it’s too late to have them execute a Health Care POA. Remember, a diagnosis doesn’t mean the person is already fully incapacitated and these professionals can help determine if costly court intervention can be avoided by having a capacity examination and simultaneously executing documents whereby the loved one makes their own choice as to who should make their decisions in the future. This can also prove useful if the loved one needs to revoke a previously executed document because the person they named (their agent) is no longer acting in their best interest.

STEP THREE: Often times referred to as and confused with a “conservatorship,” guardianship is needed when a someone who is incapacitated due to age or disability has not named a Health Care Power of Attorney to address their health care needs. If your loved one didn’t take this step or is no longer able to do so, you must petition the court for guardianship. This process often takes several months and requires that two (2) examiners find the person is no longer able to make their own decisions. Following that ruling, the court will then transfer duties such as daily medical care, living arrangements, and medical decision-making to the petitioner. This process can be timely and in some cases costly, especially if family members disagree as to whether or not a guardianship is necessary or disagree as to who should be making such decisions.

Here are a few common questions we are asked about the process:

• What is a fiduciary and how is that different from a court-appointed guardian? ​A guardian is someone who has court-ordered authority to handle an incapacitated individual’s affairs. They have what is called a “fiduciary duty” to act in the best interest of the person in which they have been appointed to serve; therefore they are a fiduciary and an agent, just as someone named in a Health Care Power of Attorney.
• Can anyone be appointed as a guardian? ​The short answer is no. In South Carolina, the importance of this role is not taken lightly and the court is charged with reviewing each case to make sure that the person appointed as a guardian is both willing and able to serve in the best interest of the ward. If two people are seeking this responsibility, the court must then decide which, if either, is better suited to play such a role. The ward’s preferences and any legal documentation created prior to the individual’s incapacitation (i.e. a power of attorney or advance directive) could impact the final decision.
• What are the duties of a guardian? ​The responsibilities of a guardian differ as they are often based on the extent of the ward’s incapacity, with the goal of promoting maximum independence.

• Determining living arrangements (i.e. location);
• Supervising the residence;
• Giving consent for any medical procedures and/or treatments;
• Securing and overseeing the administration of medications;
• Releasing medical information;
• Hiring or firing health care providers;
• Making end-of-life decisions;
• Making annual reports to the court about the status of the guardianship.

• Does a guardian get paid? ​All court-appointed guardians are entitled to reasonable compensations for the services they provide. In most cases, when a spouse, family member or friend is appointed, they don’t charge the ward, however, when a private or public guardian is appointed, these individuals are paid directly from the ward’s estate if the funds are available. Typically, any compensation must be approved by the court and the guardian must keep thorough records of all of their services, time spent handling those tasks, and any out-of-pocket costs incurred as a result. It’s always wise to discuss compensation with your attorney and the court BEFORE accepting these responsibilities.