Commentary

What to Do If You Are Appointed Guardian of an Older Adult

Being appointed guardian of a loved one is a serious responsibility. As guardian, you are in charge of your loved one’s well-being and you have a duty to act in his or her best interest.

If an adult becomes mentally incapacitated and is incapable of making responsible decisions, the court will appoint a substitute decision maker, often called a “guardian,” but in some states called a “conservator” or other term. Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “ward”).  In Virginia, the person appointed by the court to make health and living arrangements decisions for an incapacitated adult is called a guardian and the person with decision making authority over the person’s financial affairs is called a conservator.  In most cases the same person serves in both capacities, but not always. 

If you have been appointed guardian or conservator, the following are things you need to know:

  • Read the court order. The court appoints the guardian and conservator and sets up your powers and duties. You can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the court order and state practices, you may or may not have to seek court approval for various decisions, such as to sell real property of the ward, or to remove the ward from the jurisdiction of the Court, or initiate a change in the wards marital status. If you aren’t sure what you are allowed to do, consult with a lawyer in your state.
  • Fiduciary duty. You have what’s called a “fiduciary duty” to your ward, which is an extremely high standard. You are legally required to act in the best interest of your ward at all times and manage your ward’s money and property carefully. With that in mind, it is imperative that you keep your finances separate from your ward’s finances. In addition, you should never use the ward’s money to give (or lend) money to someone else or for someone else’s benefit (or your own benefit) without approval of the court. Finally, as part of your fiduciary duty you must maintain good records of everything you receive or spend. Keep all your receipts and a detailed list of what the ward’s money was spent on.
  • File reports on time. The court order should specify what reports you are required to file. The first report is usually an inventory of the ward’s property. You then may have to file yearly accountings with the court detailing what you spent and received on behalf of the ward. Finally, after the ward dies or the guardianship/conservatorship ends, you will need to file a final accounting.
  • Consult the ward. As much as possible you should include the ward in your decision-making. Communicate what you are doing and try to determine what your ward would like done.  If the ward is totally unable to participate in decision making but made an advance directive before they became incapacitated, you should consider the wards wishes as expressed in the advance directive when making health care decisions, and in particular, end of life care decisions.
  • Don’t limit social interaction. Guardians should not limit a ward’s interaction with family and friends unless it would cause the ward substantial harm. Some states, including Virginia, have laws in place requiring the guardian to allow the ward to communicate with loved ones. See Virginia Code Section 64.2-2019 (E) which provides in part, “[a] guardian shall not unreasonably restrict an incapacitated person’s ability to communicate with, visit, or interact with other persons with whom the incapacitated person has an established relationship. Social interaction is usually beneficial to an individual’s well-being and sense of self-worth. If the ward has to move, try to keep the ward near loved ones.

For a detailed guide from the Consumer Financial Protection Bureau on being a guardian, click here.

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