Guardianship, also known as Conservatorship, is a legal process that gives one party the right to make decisions for another. When someone reaches the age of 18, it is legally assumed that they are competent to care for themselves and make their own decisions. However, someone over the age of majority can be appointed a guardian if they were born with or develop a physical or mental condition that severely inhibits their ability to make appropriate decisions related to health and finance matters, or if they have a disability that . A person being considered for guardianship is known as a proposed ward or a protected person.
Protecting Someone Else's Rights
Minor Guardianship
If a guardian is elected for a minor child, they become authorized to make decisions regarding the child’s health care, education, living arrangements, or other aspects of the child’s life as determined by the Court. The appointment of a legal guardian does not necessitate the termination of parental rights. Unlike legal adoption, guardianship allows the minor’s biological parents retain decision-making ability on any of the rights not given to the guardian. Additionally, just because a child has placement with a foster parent or other living arrangements outside of the parents’ home, does not mean that guardianship has been granted. A Dispositional Order Appointing Guardian sets forth the terms of the guardianship. It names the guardian, lists reasons for which a guardian for the minor child has been appointed, and also acknowledges which decisions on behalf of the child should be made by the legal guardian, and which shall be retained by the parents.
There are four main types of minor guardianship:
Minor guardianships fluctuate in scope and duration based on the child’s situation and needs, with the utmost goal being to ensure continued welfare and stability. The Court typically remains active in monitoring the guardianship to make sure that it remains suitable, and often relies on teams of therapists, social workers, and attorneys to safeguard the child’s rights.
Adult Guardianship
When people over the age of 18 are unable to make sound decisions regarding their own health care or finances, they may require a legal guardian of their person or estate. If it is found that a person cannot ensure their own wellbeing, their family or other caregivers may petition the Court for a guardian to be appointed. The Court may choose to appoint the same person as guardian of one’s person or estate, or may name a guardian for each. The Court has the jurisdiction to appoint either a temporary or permanent guardian for a person or their estate. A temporary guardian’s scope of responsibility is limited to the duties laid out in the order by which they were appointed, while a permanent guardian has more responsibility for to assist their ward in making personal decisions and safeguarding their rights. Often, when a person has an immediate need for a guardian, a temporary guardian is appointed to serve until the process of appointing a permanent guardian is complete. If a permanent guardian has been appointed, but subsequently becomes temporarily or permanently unable to fulfill their duties due to absence, illness, or death, a standby guardian is appointed in their stead. When the standby guardian begins to act, they must notify the Court and obtain papers outlining their decision-making authority.
Some people may have the capacity to make limited decisions for themselves if they are supported by someone who can make sure that the decision is in their best interest. In these cases, the person may choose to enter into a supported decision-making agreement with someone they trust. Unlike full guardianship, supported decision-making contracts allow people with intellectual impairments or other disabilities to maintain autonomy and make decisions for themselves, but enable them to involve someone they choose to help them gather and comprehend information, understand their rights, and communicate their desires.
Pros And Cons Of Adult Guardianship
Deciding whether someone over the age of 18 needs a legal guardian is no easy task. Below are some things to consider when determining if someone needs guardianship and choosing an appropriate person for the role.
Pros
Cons
Guardianship Of Individuals With Special Needs
When someone you love has a congenital intellectual or physical disability that hinders their ability to live independently and make healthy decisions for themselves, planning for their continued guardianship becomes all the more important. In cases where someone will likely need long-term guardianship, their parents, or another proposed guardian, must petition the Court for guardianship of that person when they reach 18 years of age. Before granting the guardianship, the Court will look into the proposed ward’s situation, and will determine whether:
1.) The person has cognitive impairments related to a developmental disability, degenerative condition, mental illness, or some similar condition;
2.) These impairments are likely to be permanent, and cannot be alleviated with treatment;
3.) The proposed guardianship is the least restrictive level of care that is consistent with the person’s needs and their ability to exercise their rights
To determine whether someone is in need of guardianship, they must undergo an examination by a medical doctor or licensed psychologist. The Court uses the report of this examination to determine the severity of the proposed ward’s incapacity, as well as their ability to make decisions and take care of themselves. The doctor or psychologist who conducted the examination can also be called upon to testify in event that the guardianship is contested. Contested guardianships proceed differently from uncontested guardianships. When a matter is contested, meaning that the proposed ward or another party objects to the guardianship or its terms, the Court gives notice to all involved parties, and sets a hearing to listen to the objections being raised and consider evidence from both the proposed guardian and the opposing parties. At the end of the hearing, the judge will decide who, if anyone, should be appointed guardian of the proposed ward. While this decision is considered final, anyone still in opposition can appeal to have the matter re-examined at a future hearing.
After conducting their review, the Court may choose to appoint a Guardian Of Person, a Guardian Of Estate, or both based on the proposed ward’s individual needs. The guardian of one’s person is authorized to make decisions about their ward’s health care, while the guardian of estate makes decisions about their financial affairs. As guardian, a person has the authority to make decisions or exercise rights on behalf if their ward. Guardians have a responsibility to perform their roles in ways that maintain as much of the ward’s independence and involvement in the decisions made on their behalf as possible without causing harm.
Petitions for Guardianship can be filed with or without counsel, but seeking an attorney to assist with filing for guardianship or modifying an existing placement is strongly encouraged. Guardianship proceedings are highly regulated so as not to infringe on the proposed ward’s rights, and counsel is invaluable in making sure that every step of the legal process is done with the person’s best interests at the forefront.
FAQ
Does Adult Guardianship Take Away A Person's Ability To Make All Decisions?
Although it may sound harsh, the goal of guardianship is to for the protected person to maintain the highest degree of freedom possible, and to create a support system that allows them to exercise their rights to the fullest extent that they are able, and to receive help to exercise rights that they cannot accomplish alone. Guardianship aims to paint decision-making as a functional skill that a person can improve on through continuous practice. This ability to decide things for oneself is considered a sacred right that should be upheld at all costs. Therefore, the decision to name a legal guardian for someone is made very seriously and with the knowledge that the guardian’s authority to make certain decisions and exercise certain rights on behalf of their ward means that the protected person will be deprived of the ability to do so for themselves.
Guardianships are only granted if it can be proven that, without a legal guardian’s protection, the proposed ward be at risk of serious harm due to their inability to act on or communicate their desire to act on their rights or their inability to properly care for or keep themselves safe. During and after the process of granting a guardianship, the Court, and the protected person’s proposed guardian, are obligated to recommend and enact support that is the least restrictive possible. This means that options for treatments, services, or facilities, or for the degree of the guardian’s authority, must uphold as much of the person’s personal freedom and decision-making ability as is possible, while still ensuring that the person is kept safe from harm.
What Is Protective Placement, And How Does It Differ From Guardianship?
In Wisconsin, protective placement is required for instances where an adult requires more assistance with activities of daily living, such as bathing, getting dressed, or moving around safely than they can receive outside of a licensed facility. Protective placement orders are required for someone who has a legal guardian and lives in a support facility with more than 16 beds, but can also be ordered for someone who receives in-home care or nursing services.
Placing someone under protective placement is a decision that the Court takes very seriously. The Court and guardians have an obligation to make sure that a protected person’s living and care arrangements are in the least restrictive setting that is consistent with their care and safety needs without unduly encroaching on personal freedoms or the ward’s ability to meaningfully participate in society and exercise their rights as they are able. Thus, because protective placement consciously limits a person’s freedoms and ability to exercise their rights even more stringently than a legal guardianship, placements are reviewed annually by the Court and by medical or psychological professionals to ensure that they remain the least restrictive setting needed to keep the person safe.
What Is A Watts Review?
A Watts Review or Watts Hearing is an annual review of a protective placement or guardianship. Regardless of legal guardianship or protective placement, everyone has rights that can never be taken away from them. Watts Reviews act to safeguard these rights by ensuring that the person’s current guardianship or protective placement circumstances are the least restrictive possible consistent with what is necessary to keep them safe and cared for. During the review process, a social worker or other professional must conduct an inquest into the ward’s condition and current placement, note their condition and any challenges they are facing, and use their medical knowledge to recommend whether the current placement is adequate or whether it needs to be changed. The document resulting from this inquest is known as an Annual Report. Then, an attorney is charged with speaking to the protected person and their guardian directly. The attorney, known as a Guardian ad Litem, may also speak with anyone who might have additional information about the person’s care needs or current placement. The Guardian ad Litem informs the ward of their rights, inquires about the person’s feelings about the guardianship and their current living arrangements, and uses the Annual Report to make a recommendation to the Court about whether or not the degree of guardianship and the person’s current living arrangements are the least prohibitive possible. Using the information garnered from the Annual Report and Guardian ad Litem’s review, the Court determines whether to continue or modify the current placement.
Another important function of a Watts Review is to assist the protected person to appeal the guardianship or protective placement decision if they so choose. If someone feels that their legal guardianship is unjustified, or that their placement unnecessarily infringes their ability to live freely and exercise their rights, they have the power to make the Guardian ad Litem aware of this. If the ward should communicate their objection, the Guardian ad Litem has a responsibility to notify the Court of such, and the matter proceeds in Court as contested. If the guardianship is contested, the Court schedules a hearing, during which parties may express why they are or are not in favor of the guardianship or its terms. Following these arguments, the Court decides if the guardianship is necessary, and whether its terms are least restrictive.
What Is Meant By "Right To Due Process"?
Guardianship and protective placement are subject to Due Process Clauses, as are all legal proceedings. The Right to Due Process is outlined in the Fourteenth Amendment of the United States Constitution. It states, among other things, that everyone under the jurisdiction of United States law has certain rights during legal proceedings that will limit their personal freedoms. As it pertains to guardianship and protective placement proceedings, a person’s Right to Due Process means that, if the matter of their guardianship and/or protective placement is being addressed, an attorney will be appointed by the Court. This attorney, called the Guardian ad Litem, represents the person’s best interests in the Court proceedings. They are not the proposed ward’s attorney, nor do they represent any of the interested parties in the guardianship or protective placement. Instead, the Guardian ad Litem’s responsibility is to investigate the matter as a neutral party, and to make a recommendation to the Court about what is best for the proposed ward.
It is possible that a Guardian ad Litem’s recommendations would completely go against what the proposed ward wants, and, for example, advises that the Court completely restrict the person’s ability to make decisions for themselves. In situations like this, the proposed ward’s Right to Due Process allows them to retain an attorney to represent them. This attorney, known as an advocate counsel, represents the protected person in their opposition to their guardianship.
A person’s Right to Due Process also means that they have the right to appeal their legal guardianship if they object to its enforcement. The protected person has the right to a trial by jury on the matter, and can, over the course of this trial, present their own evidence opposing the guardianship, including an independent medical or psychological evaluation. The ward may call witnesses to testify on their behalf, and can also cross-examine opposing parties. The purpose of this type of trial is to ensure that the ward is given a fair chance to defend themselves in front of an impartial jury, who will use their neutral viewpoint to decide whether the guardianship is warranted.
What Is An Advocate Counsel?
In cases where a guardianship is contested, a protected person’s advocate counsel is charged with attempting to demonstrate to the Court that the guardianship or its terms unnecessarily or too rigorously limit the person’s rights or personal freedom. While the Guardian ad Litem is tasked with representing the person’s best interests, the advocate counsel’s position is to represent the protected person in their appeal of the guardianship. The attorney named as advocate counsel is responsible for expressing the proposed ward’s objections to the Court in a contested guardianship hearing, and may also assist in naming and cross-examining witnesses that may help support the position that the proposed guardianship is inconsistent with the protected person’s care or safety needs.
The advocate counsel is vital in making sure that the proposed ward has a sufficient forum in which to have their disagreement with guardianship heard. Guardianship, even when in one’s best interest, involves denial of certain rights and freedoms. Thus, when a proposed ward invokes their right to have an attorney assist in proving competence in order to retain their own ability to exercise their rights and communicate their desires freely, the advocate counsel’s role is of utmost importance.