It can be hard to acknowledge that our mental and physical capacities may diminish as we get older. While it’s something many of us would rather not consider, it is simply a fact of life. One’s ability to meet his or her basic needs can become compromised due to a chronic illness, disease, disability or old age.
When a person becomes incapacitated to the extent that they can no longer attend to their personal, financial or property management needs, the courts may appoint guardianship for that individual to a family member, a close personal friend or a private or public entity such as a bank, nursing home or social service program.
What do courts consider when determining the need of guardianship?
Since a guardian can wield a broad range of decision-making power with regard to the ward’s living arrangements, health care, income and other financial matters, there are specific factors that the court considers before granting an appointment of guardianship.
In general, courts prefer to honor each individual’s autonomy and right to self-determination. This means they will typically only authorize guardianship to the extent that it balances the need for assistance and the right to independence. Before making a determination of guardianship, the courts will take a look at four things:
- The extent to which the individual can manage their daily living activities
- The individual’s ability to comprehend the importance of managing their daily living activities and the consequences of any inability to do so
- The individual’s preferences, desires and values with regard to how their daily living activities might be managed
- The scope of the individual’s needs with regard to property and financial affairs and their capability of managing such needs
If someone dear to you is no longer able to meet their basic day-to-day needs for living a functional and fulfilling life, it may be wise to begin the process of filing an order for guardianship. Doing so can safeguard their rights and best interests in a way that honors their dignity and personhood while acknowledging their very real need for assistance.