July 01, 2013

How to Avoid Guardianship (for Your Clients and Yourself!)

Lawrence A. Frolik

Alzheimer’s, dementia, senility: call it what you will, as we age, the possibility of losing mental capacity is a real fear—and a realistic one, as between one-third and one-half of all those age 85 or older suffer some degree of dementia. The older the individual, the more likely he or she is to suffer some loss of mental capacity. For many, that loss is so great as to warrant the need for a guardian who can handle the individual’s financial and personal affairs.

Guardianship is governed by state law, and, therefore, it naturally varies somewhat from state to state. In some states, guardianship is known as conservatorship, particularly if it applies only to an individual’s assets. But in this article, the term “guardianship” will be used as a general term that refers to any court-appointed decision maker for someone with diminished mental capacity.

The degree of loss of mental capacity necessary for the court to appoint a guardian depends on the state statute, but, in general, individuals must be unable to make reasonable decisions about their person and property.

Premium Content For:
  • Senior Lawyers Division
Join - Now