Legal Considerations for Caregivers: What is Guardianship?

As a family caregiver, you have a lot constantly riding on your shoulders. There’s no shortage of responsibilities and concerns to keep you busy. An easily overlooked aspect of these responsibilities is the legal considerations you need to make, like deciding the need and person for guardianship.

Guardianship is a big decision for both parties and can be a daunting conversation (or set of conversations). But it’s important not to delay too long or you may miss the window to discuss it. In this article, we’ll help you understand what guardianship is, who needs it, and the pros and cons of choosing that option. Let’s dive in.

What is Guardianship?

Officially, guardianship will “formalize the caregiving role while empowering the caregiver to make financial and healthcare decisions for their disabled loved one.” (Law Office of Adriane Grace).

A legal guardian is someone who can make legally binding decisions on behalf of the individual under guardianship. These decisions can range from financial responsibilities, treatment plans, and end-of-life care, to all other decisions in between. Essentially, you take a form of authority over the person in your care and as such, you will often be the one communicating with doctors, lawyers, bankers, loan officers, and others.

Who Needs Guardianship?

Guardianship is designed to support and protect individuals who may not have the mental capacity or physical ability to make important decisions regarding their own health and well-being. Those who need it vary – everyone is different – but may include those suffering from dementia, debilitating injury, cognitive disabilities, or other illnesses that may one day leave the individual disabled or unresponsive.

This is a huge responsibility and picking the right person can be difficult. Both parties should be understanding of what comes with guardianship and feel comfortable with the decision. It should be someone with the individual’s best interests in mind – someone trustworthy to handle such a responsibility.

Conversations Regarding Guardianship

If you and your loved one think guardianship may be needed (immediately or in the future) it’s important to act quickly. Although it is a difficult conversation to have, it’s important to have these details planned out. Sickness or dementia can onset at a rapid pace and the last thing you want is to have no idea of what their wishes would be.

Plan to have important conversations around topics like:

End-of-life care
Financial plans (debts, payments, investments, plans, etc.)
Will execution
DNRs
Best contacts (who to call in what situation)
Power of attorney
Advanced directives
Etc.

Legal Considerations to Guardianship

After becoming a guardian, the state courts will monitor your performance. This means they will make sure the person under guardianship is being properly taken care of and look for signs of abuse or mishandling.

Although it usually isn’t an issue, there have been cases of funds being mishandled, conflicts of interest, and even physical, emotional, or situational abuse. These check-ins are designed to protect the person under guardianship to better ensure their needs are being met.

That being said, it’s important to be sure you can fulfill your duties as a guardian before agreeing to take on the responsibility. Keep in mind there can be legal ramifications if you are not holding up your end of the agreement.

Pros and Cons of Guardianship

To make sure you are truly ready to agree to have or become a guardian, it’s important to understand the pros and cons.

Let’s take a look at some of them:

Power over daily life

Guardians advocate on behalf of the individual and can determine things like where they will live, medical treatments, and who is allowed to visit. As such, loved ones and family members may no longer have a say in such decision making.

Power over finances

Guardians will help with financial decisions along with medical ones to make sure the sick individual’s needs are met. The person being cared for will lose many of their own decision-making rights to the guardian.

Legal costs and considerations

Guardianship is a legal process (usually with an attorney) that ensures a sick individual is cared for. Because it is a process based in law with specific legal requirements, it’s expensive. Many fees can come along with setting up and maintaining a guardianship.

Guardianship Permanence

Terminating a guardianship is a lengthy legal battle and evidence must be provided that shows a change is in the best interest of the individual. Changing guardianship will require an attorney and a court case which can be lengthy and costly.

Closing Thoughts: Understanding Guardianship as a Caregiver

Guardianship can be a lifesaver for certain situations. If you or someone you know is considering setting up a guardianship or taking on the role of guardian, then it’s important to know the legal considerations that come with it.

You need to be sure you have the time and ability to take care of someone full time, if chosen, and make sure you are the person best suited for this role. The most important thing is making sure you can dedicate the time and create a healthy and loving environment for the person who needs it.

But you don’t have to do it alone. The California Caregiver Resource Centers are here to support you. We are a non-profit network of 11 Centers that support caregivers across the state of California. Every county in the state is covered.