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Healthcare issues of guardianship arise when a patient cannot think or decide for themselves. Healthcare professionals and administrators are often uncertain about how the law and the rules of guardianship work and the process involved. Often hospitals, long term care and mental health facilities, have to deal with incapacity and guardianship issues when it comes to patient care. The following is a legal perspective on how to navigate that maze:
Guardianship?
Adult guardianship is the legal process by which an individual assumes the role of decision-maker for an adult who becomes unable to make such decisions for himself/herself.
Guardianship can take several forms involving various aspects of the ward’s life, whether it be health, wealth or how to live out the person’s day to day life. The responsibilities can be divided up or centralized under one guardian.
Who can be a guardian:
• Must be 18 years of age; United States resident, of sound mind, does not have a disability and has not been convicted of a felony involving harm or threat to others, may serve as guardian of the estate.
Determination of guardianship:
Though the process differs by state, the person seeking guardianship must:
• File a petition for guardianship of the alleged person with disabilities nominating the qualified person to act as guardian;
• Have the petition served. Service is usually performed either by the sheriff of the county in which the petition is filed, or by private service (in some jurisdictions private service requires court approval) and must be accomplished by some specified number of days prior to the hearing date;”
• Provide notice by mail to the respondent’s nearest relatives; and
• Obtain a medical report from a licensed physician detailing the reason guardianship is necessary.
The law takes the revocation of a citizen’s rights very seriously and provides the respondent with legal protection in guardianship cases, which are spelled out in the governing statute.
These rights are as follows:
• The right to object to guardianship;
• The right to counsel, either chosen by the Respondent or appointed by the court;
• The right to a jury of six persons;
• The right to present evidence and confront and cross-examine witnesses;
• The right to a second independent medical opinion;
• The right to a closed hearing; and
• The right not to attend the hearing
What happens if guardianship is determined to be necessary?
When guardianship is ordered by the court, the named guardian becomes an officer of the court and is subject to the oversight of the court.
If guardianship is of the person only, the guardian is required to:
• Execute a no surety bond or an Oath of Office; and
• Report annually on the mental and physical condition of the ward.
If guardianship includes the ward’s estate, the guardian is required to:
• Execute a surety bond in an amount determined by statute;
• Present an annual budget and an initial inventory of the estate’s assets; and
• Present an annual accounting of the ward’s assets to the court.
Who pays for the guardianship?
Generally, if guardianship is of the person only, and the ward has no assets, the petitioner usually bears the cost burden. If the ward has an estate, the costs of gaining and maintaining the guardianship are borne by the ward’s estate.
What are the limitations of guardianship?
Examples of the limitations of guardianship include, but are not limited to:
• No authority for permanent placement in a care facility without court approval;
• Ward cannot be forcibly medicated, except by order of the court;
• Ward cannot be kept isolated from any person, except at their request, or by order of the court for the ward’s safety;
• Ward cannot be prevented from requesting a hearing to seek restoration of rights.
Guardianship is a deprivation of individual rights and should be sought only as a last resort.
