Guardianship 101: Understanding the Basics and How Home Care Services Help
Recently our Director of Community Relations, Ryan McGuire, hosted an educational talk on the topic of Guardianship with guest speaker Shekinah Hammonds Davis with Hammonds Davis Law. Guardianship is a powerful legal tool designed to protect individuals who can no longer manage their own affairs. Whether due to age, illness, or disability, there are circumstances where a person—often referred to as the ward—requires someone else to step in and make critical decisions on their behalf. While families often first consider powers of attorney, there are situations where guardianship and home care services work hand in hand to provide the right balance of support and protection. In this summary the fundamentals of guardianship, how it differs from powers of attorney, when it may be necessary, and the responsibilities that come with serving as a guardian are defined.
What is the difference between Power of Attorney and Guardianship?
At first glance, powers of attorney (POA) and guardianship may seem similar, as both grant decision-making authority over another person’s affairs. However, there are important distinctions. Power of Attorney (POA) is simple to establish, often just a matter of signing a form. It is cost-effective, easily revoked, and allows the individual to maintain control as long as they are capable of making decisions. Importantly, POAs are not monitored by the court, which can leave them vulnerable to misuse.
Guardianship is more complex. It can only be granted or revoked by a judge, and it typically involves higher costs and more oversight. Once appointed, a guardian has stronger authority to act, but they must do so under the watchful eye of the court. This makes guardianship both more restrictive and more protective than a POA—especially when medical or home care services decisions are required.
At first glance, powers of attorney (POA) and guardianship may seem similar, as both grant decision-making authority over another person’s affairs. However, there are important distinctions. Power of Attorney (POA) is simple to establish, often just a matter of signing a form. It is cost-effective, easily revoked, and allows the individual to maintain control as long as they are capable of making decisions. Importantly, POAs are not monitored by the court, which can leave them vulnerable to misuse.
Guardianship is more complex. It can only be granted or revoked by a judge, and it typically involves higher costs and more oversight. Once appointed, a guardian has stronger authority to act, but they must do so under the watchful eye of the court. This makes guardianship both more restrictive and more protective than a POA—especially when medical or home care services decisions are required.
Types of Guardianship and Their Role in Home Care Services
There are two main types of guardianship. Guardian of the Person and Guardian of the Estate. Guardian of the Person means you are responsible for medical and personal care decisions. This may involve arranging for medical treatment, placement in a care facility, or coordinating home care services to ensure daily needs are met. Guardian of the Estate means you are responsible for managing financial affairs, including assets, income, and expenses.
Guardianships may be temporary or permanent. A temporary guardianship, often referred to as an emergency proceeding, may be granted within days if there is substantial evidence of incapacity and an urgent risk of harm. These appointments usually expire within 60 days. Permanent guardianship, on the other hand, may take months to establish and remains in place until terminated by court order or the ward’s death.
There are two main types of guardianship. Guardian of the Person and Guardian of the Estate. Guardian of the Person means you are responsible for medical and personal care decisions. This may involve arranging for medical treatment, placement in a care facility, or coordinating home care services to ensure daily needs are met. Guardian of the Estate means you are responsible for managing financial affairs, including assets, income, and expenses.
Guardianships may be temporary or permanent. A temporary guardianship, often referred to as an emergency proceeding, may be granted within days if there is substantial evidence of incapacity and an urgent risk of harm. These appointments usually expire within 60 days. Permanent guardianship, on the other hand, may take months to establish and remains in place until terminated by court order or the ward’s death.
When is Guardianship Needed?
Guardianship may be required when no valid or effective powers of attorney exist, or when the existing documents are insufficient.
Guardianship for the Person may be necessary if medical decisions cannot be made due to the absence of a medical power of attorney, if the individual cannot understand or sign such a document, or if family members are unavailable or ineffective as decision makers. Common situations include the need for surgery, placement in a care facility, or ongoing home care services when the individual resists but lacks capacity. Guardianship for the Estate not only becomes necessary but critical when bills cannot be paid, assets are at risk of exploitation, or property must be sold to provide for care. It also applies in cases where a minor inherits funds or when an existing financial power of attorney is invalid or ineffective.
Guardianship may be required when no valid or effective powers of attorney exist, or when the existing documents are insufficient.
Guardianship for the Person may be necessary if medical decisions cannot be made due to the absence of a medical power of attorney, if the individual cannot understand or sign such a document, or if family members are unavailable or ineffective as decision makers. Common situations include the need for surgery, placement in a care facility, or ongoing home care services when the individual resists but lacks capacity. Guardianship for the Estate not only becomes necessary but critical when bills cannot be paid, assets are at risk of exploitation, or property must be sold to provide for care. It also applies in cases where a minor inherits funds or when an existing financial power of attorney is invalid or ineffective.
The Process of Establishing Guardianship
The process of establishing guardianship involves multiple steps to ensure fairness and protection of the ward’s rights.
The process of establishing guardianship involves multiple steps to ensure fairness and protection of the ward’s rights.
- Application: The petition must detail the nature of incapacity, the individual’s estate, and whether alternatives were considered.
- Service of Citation: The proposed ward is formally notified.
- Appointment of Attorney ad Litem: An attorney is assigned to represent the ward’s interests.
- Medical or Mental Examination: Licensed professionals evaluate the ward’s capacity.
- Guardian Qualification: Prospective guardians must undergo a background check, training, and bonding requirements.
- Court Hearing: A judge determines whether guardianship is necessary, if less restrictive alternatives exist, and whether the proposed guardian is suitable.
Responsibilities of a Guardian in Connection with Home Care Services
While serving as a guardian is an honor it is, more importantly, a serious legal duty. Guardians act as advocates, ensuring the ward’s best interests are protected. They act as decision makers, responsible for the personal, medical, or financial choices. This often includes decisions about care facilities or arranging home care services to meet daily needs.
They act as monitors, accountable to the court through reporting requirements. Guardians must file inventories of property, annual accountings, and reports on the ward’s living situation. Expenditures must be approved by the court, and all decisions must be reasonable and necessary. This oversight ensures transparency and safeguards against misuse.
Courts closely monitor guardianships to balance the ward’s need for protection with their right to autonomy. In addition to financial reporting, some courts require annual visits by court-appointed visitors to assess the ward’s well-being. Importantly, guardianship is not always permanent. The ward retains the right to seek restoration of rights.
While serving as a guardian is an honor it is, more importantly, a serious legal duty. Guardians act as advocates, ensuring the ward’s best interests are protected. They act as decision makers, responsible for the personal, medical, or financial choices. This often includes decisions about care facilities or arranging home care services to meet daily needs.
They act as monitors, accountable to the court through reporting requirements. Guardians must file inventories of property, annual accountings, and reports on the ward’s living situation. Expenditures must be approved by the court, and all decisions must be reasonable and necessary. This oversight ensures transparency and safeguards against misuse.
Courts closely monitor guardianships to balance the ward’s need for protection with their right to autonomy. In addition to financial reporting, some courts require annual visits by court-appointed visitors to assess the ward’s well-being. Importantly, guardianship is not always permanent. The ward retains the right to seek restoration of rights.
The Role of Social Workers and Home Care Services
Social workers often play an important role in identifying when guardianship may be appropriate. They can refer families to attorneys or legal aid services, assist with Adult Protective Services (APS) reports in cases of suspected abuse, and provide valuable support throughout the process. They may also guide families in arranging home care services, ensuring that the individual’s needs are met while legal protections are established.
Social workers often play an important role in identifying when guardianship may be appropriate. They can refer families to attorneys or legal aid services, assist with Adult Protective Services (APS) reports in cases of suspected abuse, and provide valuable support throughout the process. They may also guide families in arranging home care services, ensuring that the individual’s needs are met while legal protections are established.
Conclusion
Guardianship is a serious legal responsibility intended to protect those who cannot protect themselves. While it is often a last resort when alternatives like powers of attorney are not feasible, it provides a structured, court-supervised framework for care and decision-making. Families, professionals, and social workers alike must understand the complexities of guardianship to ensure the safety, dignity, and well-being of vulnerable individuals.
Guardianship is a serious legal responsibility intended to protect those who cannot protect themselves. While it is often a last resort when alternatives like powers of attorney are not feasible, it provides a structured, court-supervised framework for care and decision-making. Families, professionals, and social workers alike must understand the complexities of guardianship to ensure the safety, dignity, and well-being of vulnerable individuals.
In many cases, guardianship and home care services go hand in hand—providing both the legal protection and the daily support needed to help individuals live safely, comfortably, and with dignity.