September 30, 2024

Guardianship is becoming a significant issue for baby boomers caring for aging parents. Traditionally, it was a contentious process that stripped elderly individuals of most rights. Today, guardianship can be more nuanced, with courts evaluating specific areas of capacity to grant guardianship only when necessary.

There are two types of guardianship: of the person, for living and healthcare decisions, and of the estate, which involves managing the person’s financial affairs. Modern guidelines from organizations like the American Bar Association focus on task-specific capacity, recognizing that a person may need assistance in some areas while remaining independent in others.

Courts evaluate six areas of capacity:

1. Medical Condition: Cause and prognosis of diminished capacity.
2. Cognition: Extent of impaired decision-making abilities.
3. Everyday Functioning: Ability to manage daily activities like self-care, finances, and healthcare.
4. Values and Preferences: Consistency of personal choices.
5. Risk of Harm: Supervision needed to avoid harm.
6. Enhancing Functioning: Treatments or aids that may improve the person’s abilities.

Clinical assessments help determine if guardianship is necessary, and guardianship plans are tailored to the individual’s retained capacities. Financial decisions are a crucial aspect, and the elderly person’s relationship with a financial advisor can play an important role in crafting a guardianship plan.

While not all courts follow these guidelines, they are a step towards ensuring dignity and respect for older adults, even in cases of diminished capacity.

For assistance with estate planning, including wills and trusts, contact Omni360 to protect your family’s future.