A Review of the Guardianship Process

A Review of the Guardianship Process and the Roles and Responsibilities of a Guardian Appointed Over a Resident's Person and/or Over Their Estate

Many elderly patients who reside in long term care facilities do not have the capability to handle their own personal and financial affairs. As a result, quite often a facility’s staff is communicating directly with a court appointed guardian regarding the resident's care and/or financial well-being. However, it is not uncommon for questions to arise as to the guardian's role and his/her authority over the resident as granted by a court.

A guardianship is defined as a "legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward")".¹  In most states, the type of guardianship and the individual asking to be appointed guardian needs to be approved by a probate or family court.  Given that a guardianship is legal process which limits and/or divests the ward of certain individual rights, the decision to appoint a guardian is examined closely by the court. The general standard of review by the court is if the individual is deemed incompetent.  Meaning, a guardian is needed over an individual "when he or she shows a lack of capacity to make responsible decisions".²  In determining an individual's capacity, the court will typically review the individual's ability to care for their personal needs as well make sound financial decisions. 

Typically, the individual who is appointed guardian is a family member or close friend to the ward and who is in the best position to know and understand the ward's particular needs.  However, it is possible the guardian may not even be an individual person.  In most states, a non-profit agency or a public or private corporation could be appointed should a court determine no suitable individual could serve as guardian and it is in the best interest of the ward.³  

Another aspect of the guardianship process is whether the person needs a guardian over their person and/or over their estate.  Guardianship of the person is when the guardian has authority to make personal decisions over the ward’s healthcare or other day-to-day needs.  Some responsibilities of guardian of the person include but are not limited to the following:⁴   

• Determine and monitor the ward's residence
• Consent to and monitor all medical treatment, including end-of-life decisions
• Consent and release of confidential information
• Act as representative payee
• Maximize the ward's independence with as little restrictions as possible
• Report to the court on the status of the guardianship at least annually or as required by state and local laws

Guardianship of the Estate (or termed "Conservatorship" in some states) is when a guardian is appointed to oversee the ward's property and/or make financial decisions in the best interest of the ward.  Some responsibilities of a guardian of the estate include but are not limited to the following:⁵   

• Marshall and protect assets
• Obtain appraisals and sell property when warranted and approved by the court
• Receive income for the ward's estate
• Make appropriate monetary distributions from the ward's estate as allowed by local and state laws
• Report to the court on the status of the guardianship at least annually or as required by state and local laws

In many cases where the ward is in need of both a guardian of their person and of their estate, the same individual or non-profit agency could be appointed to handle both sets of responsibilities.  However, it is not uncommon to have two guardians each responsible for their respective duties as granted by the court.   Moreover, the court may determine the ward is capable of handling certain matters of his or her affairs but not capable of handling other matters that are in their best interest.  In those situations pursuant to the specific state laws, the court may grant a limited guardianship in which the guardian is approved with specific limited powers over the ward.⁶  With a limited guardianship, a court's order will state the specific powers and/or responsibilities that are granted to the guardian, for example overseeing medical treatment and or residency placement only for the ward. 
 
Long term care providers may face some challenges when dealing with guardianship matters.  In particular, the situation where a guardian is limited in their duties over a resident under the court's appointment or perhaps when there is no guardian at all. The resident may find it difficult to understand their financial situation and/or handle any monetary or insurance issues but no one has the authority to act on the individual's behalf.  This could result in an unpaid receivable for the facility. 

In those situations, one alternative for the facility is to petition the court to become the appointed guardian or request a neutral third party to handle.  However, a facility should be mindful of the process involved and the responsibilities and duties that result if one is appointed over another.  Furthermore, it is recommended that a facility would retain an attorney before proceeding to protect its interests and that could result in additional fees and costs to a facility's bottom line.  In most situations, a facility's interest in petitioning to become a guardian should be reviewed on a case-by-case basis and typically as a last resort to seek payment.  If a long term care provider is facing challenges with a guardianship matter and/or is considering petitioning for a guardianship over one of its residents, they should contact Weltman's HealthCare Collections Group at wwr-healthcare@weltman.com.

¹ http://www.elderlawanswers.com/guardianship-and-conservatorship-12096
² http://www.elderlawanswers.com/guardianship-and-conservatorship-12096
³ http://www.elderlawanswers.com/guardianship-and-conservatorship-12096
⁴ http://www.guardianship.org/what_is_guardianship.htm
⁵ http://www.guardianship.org/what_is_guardianship.htm
⁶ http://codes.ohio.gov/orc/2111.02