Decision-making and Guardianship
Sometimes people have a hard time making choices about their medical care and life. This can happen because they have serious thinking and memory problems from health issues, like:
- A type of dementia, such as Alzheimer's disease
- Intellectual disabilities, like Down syndrome
- Being in a coma or having other major health problems
Older people with these or other health problems need to plan who will help them with money and medical choices when they can't do it themselves. One option is to pick a health care decision-maker. This person can speak for the older person about medical choices.
The legal paper that names a health care decision-maker can be called different things, such as:
- Health Care Proxy
- Durable Power of Attorney for Health Care
- Health Care Representative
Appointing a Guardian
Sometimes older adults can’t make important decisions but haven’t chosen someone to do this for them. So, a court may need to appoint a guardian for the older adult. The guardian can help the older adult with:
- Managing finances
- Providing food and shelter
- Making medical decisions
Establishing Guardianship
The guardianship process often requires the petitioner to hire an attorney.
The person or group who asks the court to appoint a guardian for an older adult is called the petitioner. If no relatives are available to do this, social service agencies or healthcare providers (for example) may also be petitioners.
Petitioners must demonstrate that the older person can’t safely manage their lives on their own. If the court agrees, they will appoint a guardian.
Types of Guardianship
All states allow the courts to set up limited guardianships (also called conservatorships) and unlimited guardianships (also called committeeships).
- A limited guardianship gives the guardian the power to take charge of a specific area that the older person is no longer able to manage (such as finances or medical care).
- An unlimited guardianship gives the guardian the power to make all the decisions about the older person’s life,.
Most states prefer limited guardianships. Unlimited guardianship means that the older adult can’t make any of their own decisions.
Guardianship needs to happen only if:
- No less restrictive choice exists
- The welfare of the individual is at risk
Alternatives to Guardianship
At least two choices other than guardianship exist:
- Supported decision-making gives the older adult the supports and services they need to make their own decisions.
- Medical and ethical review boards give guidance about risks and benefits of treatments when family decision-makers aren’t available.
Information about legal issues and guardianship often is available from state departments of aging and social services. You can find Find your SUA by visiting www.eldercare.gov or calling 1-800-677-1116.
Last Updated May 2023