Older people may need a trusted individual to step in and manage their affairs, should they ever suffer debilitating health problems like dementia, Alzheimer’s disease, and strokes.
Guardianship can provide protection and assistance with certain decisions for an incapacitated individual — known as a “ward” — who may become unable to make decisions or advocate for themselves. In appointing guardians, courts can restrict a ward’s rights in some circumstances. Wards may lose the right to:
- Decide where to live
- Provide medical consent
- Make decisions about whether to prolong their life with medical interventions
- Have a driver’s license
- Control, buy, or sell property
- Possess a firearm or weapon
- Make contracts
A guardian should make decisions that benefit the ward. Some guardians fail to act in their wards’ best interests, preventing them from seeing family and friends, making unsound healthcare decisions, and neglecting to protect them from harm.
Although the guardian becomes the primary decision maker, the person under guardianship also retains many essential freedoms. Elders with guardians and their family members should know these rights so that they can respond if control becomes overly restrictive.
State Laws Governing Guardianships
State laws govern guardianships, and many states have acted to protect the rights of wards. The American Bar Association reported that, since 2015, 18 states have passed laws protecting the rights of people in the custody of guardians, while other states have strengthened their laws.
Many states have passed versions of a Guardianship or Ward's Bill of Rights, with rights including:
- Access to an attorney and the power to petition the court for relief
- Fair treatment
- The ability to see and communicate with friends, family, community members, and others
- Respect for the ward’s religious beliefs and wishes
- The most significant attainable level of control over their circumstances
Nursing Homes and the Rights of People with Guardians
Special considerations arise for wards residing in nursing homes. The federal Nursing Home Reform Law governs skilled nursing facilities receiving federal funding and establishes the rights of nursing home residents, including the rights to:
Visit with other residents and family members in the establishment
Select a physician
Private communications from family
Receive accommodations for their needs
Express complaints about the home and other residents without retaliation
Engage in social and religious activities
Review the results of nursing home surveys done by the Secretary of State
- Refuse room transfers and moves out of a skilled nursing room
Whether nursing home residents with legal guardians retain these freedoms or whether these rights transfer to the guardian depends on state law.
The liberty to visit with family and others and participate in social groups is of particular concern for wards who receive care in skilled nursing facilities, as nursing homes may rely on guardians’ authority to prevent residents from accessing friends and family.
Petitioning the Court
Even after a court has ruled a person disabled and assigned a guardian, the person retains the right to petition the court to terminate the guardianship. For example, an individual may recover from illnesses that once rendered them unable to handle their affairs and opt to end the guardianship arrangement.
What to Do When a Guardian Is Abusive
Abuse by a guardian is illegal. Those suffering abuse by a guardian and their family should understand their rights and take action to protect themselves or their loved ones.
Nursing home residents who suffer abuse under guardianship may contact their local ombudsman, an official who advocates for people in nursing homes.
Elders who experience abuse may reach out to Adult Protective Services.
- Individuals may ask the court to remove the guardian.
For guidance on guardianship, consult with a qualified elder law attorney in your area.