Article of the Week on ElderCareMatters.com: "Guardianship Matters"

Guardianship Matters   

Perhaps you have encountered a patient, a friend, or a neighbor like Gary Granite. Gary is a recently widowed man with Alzheimer’s disease. He has taken a few falls lately, he isn’t eating well, he mixes up his many medications and he is facing some difficult health care decisions.

What you see is worrisome and you wonder, who is going to help Gary make these health care decisions? Who will look after him at home? Who will make sure he is eating and taking his medications and paying his bills? Who will protect him from being abused, neglected or financially exploited? Who will protect him from harm? Gary Granite needs help. He may need the help of a court appointed guardian.

Adult guardianship is a legal process specifically designed to protect adults with mental disabilities from harm. This process has evolved from a long held policy that certain citizens, including children, the mentally ill, and the mentally disabled, are entitled to extra protection under the law. The justification for this policy is that children and adults with mental disabilities do not have the same ability as competent adults to protect themselves from harm. Therefore, they require extra protection.

The process begins when a judge determines that an adult is disabled and is unable to make personal or financial decisions for himself. The judge must rely on the testimony of a licensed physician to determine the nature of the disability and how that disability affects the adult’s ability to make personal and financial decisions. Even when the judge determines that an adult is disabled and is unable to make personal or financial decisions for himself, she can only appoint a guardian for the disabled adult if she finds it is necessary to protect him from harm.

Not every adult with a mental disability or illness needs a court appointed guardian. Many disabled adults have sufficient support systems in place to assist them in making the decisions they no longer can make for themselves. Such support systems include family members who can make medical decisions for the disabled adult under the Illinois Health Care Surrogate Act. They also include agents under a power of attorney for property or health care who can responsibly manage the disabled adult’s finances and make health care decisions. Or they include a trustee of living trust who can manage the finances.

However, sometimes support systems crumble – friends and family move away or pass away – leaving the disabled adult with no one to assist him when he needs it most. Too often, support systems are corrupted by abusive or exploitative family members, agents, trustees, caretakers or neighbors. In those situations, the disabled adult needs a guardian to protect him from the very people who should have been helping him.

Furthermore, not every disabled adult who qualifies for a court appointed guardian will benefit from one. One gap in guardianship law is its failure to give guardians the automatic and complete authority to consent to mental health treatment over the objections of the disabled adult. A mentally ill adult who is actively objecting to mental health treatment may qualify for a guardian, but he may not benefit from the appointment of a guardian solely for the purpose of consenting to mental health treatment. 

The benefits of guardianship are most apparent when the disabled adult has no responsible person to help make personal and financial decisions for him or when the disabled adult is being abused, neglected or financially exploited by someone who ought to be helping, not hurting, him. 

In Gary Granite’s case, Gary may already have a friend, relative, agent or trustee to help him. Or he may have no one at all. In that case, a guardian could help Gary make health care decisions, pay his bills and protect his assets. A guardian could arrange for a caretaker to cook and clean for Gary and help him administer his medications. A guardian could arrange for other professional services to help Gary stay in his own home as long as possible and help Gary preserve as much autonomy and independence as possible. And finally, a guardian could make sure Gary is protected from harm.