Previous posts here detailed a 2014 circuit court of appeals case that involved the competency of people to appoint pre-need guardians and the standard courts must use to determine whether to honor people's designations of their own guardians. Previous posts here have also discussed the fact that the professional guardianship system which is often used by courts to appoint guardians for adults who have lost capacity has come under intense scrutiny over the last few years and has spurred legislative efforts at reform. But, why do we spend all this time talking about guardianship?
The law generally assumes that people who are adults, which are defined as over 18 or over 21 years of age, depending on the purpose, have the ability to make decisions about their own lives, be they financial, social or legal. But, sometimes a person who would otherwise be considered an adult does not have the capacity to make such decisions due to an illness or condition that makes decision-making impossible, or limits the understanding or appreciation of actions and their consequences. When this occurs, someone may have to step in to protect the interests of the individual who has lost capacity.
As we have noted before, whether this person is a family member, friend or stranger may depend upon the directions contained in a person's estate plan. Further, in some cases different people may have different ideas about what is in the best interests of a loved one, even if they all have that person's wellbeing in mind. Lastly, sometimes the person who has lost capacity does not realize it, or resists attempts to take away some autonomy.
Because of these factors, the appointment of a guardian for an adult can be a stressful, confusing and guilt-ridden time for everyone involved. This is one reason that planning for any possible loss of capacity while one is still capable of rational decision-making can be so important. The right approach can make any potential future guardianship issues less contentious.