America’s older population (those 65 years and older) is expanding as baby boomers (people born between 1946 and 1964) age. According to the Population Reference Bureau, the average US life expectancy increased from 68 to 78.6 years between 1950 and 2017, mainly due to reduced mortality at older ages. The US Census Bureau predicts that older Americans will comprise roughly 21 percent of the population by 2030 and nearly 25 percent by 2060. As the population of older adults increases, so will the need for lawyers to volunteer as guardians for the elderly.
A guardian is a court-appointed individual who makes decisions and exercises rights and powers on behalf of an incapacitated person. An incapacitated person is someone whom the court has determined lacks the capacity to manage his financial resources or meet his personal needs for essential health care and safety requirements. Physical ailments or mental diseases (e.g., dementia or stroke) may cause incapacitation in older adults. Generally, a court appoints a guardian (or guardian of the person) to manage an incapacitated person’s health and personal affairs and a conservator (or guardian of property) to manage financial affairs. Often, one person is appointed to fulfill both roles.
Guardianship for an incapacitated adult is a double-edged sword. Guardians protect the incapacitated adult from harm and help that person maintain some independence; however, a guardianship, by its nature, removes fundamental rights by eliminating the incapacitated person’s ability to make basic decisions that affect his own life. Therefore, the decision to seek a guardianship should be taken seriously, as should the decision to become a guardian.
Young lawyers should take advantage of the rewarding opportunities to serve society and help protect the older members of our community. Being a guardian is a demanding yet gratifying role. A guardian has a high level of responsibility to both the incapacitated individual he serves and the court. The guardian is required to visit the incapacitated person every month and must make critical decisions for that person’s care and welfare, including making medical treatment decisions like creating an end-of-life care plan and prudently managing the person’s financial affairs, like paying taxes or for insurance. All actions taken on behalf of the incapacitated person must be reported to the court that established the guardianship.
Young lawyers can significantly benefit from volunteering to serve as a guardian for an older, incapacitated adult. Serving as a guardian is an excellent opportunity to work closely with an older adult and to develop practical communication skills. To be successful in the role, a guardian needs to be a good listener, be alert to facial expressions and voice qualities, and be patient. While an incapacitated person may not legally be able to make decisions for himself anymore, he still has feelings and thoughts to which the guardian should be attentive. The nature of the guardianship relationship can also help young lawyers develop empathy for clients by putting the guardian in the incapacitated person’s shoes to make decisions for that person. Finally, serving as a guardian may be the first opportunity for some young lawyers to serve as a fiduciary or to represent a client in court. These are essential skills that will help young lawyers as they develop professionally.
Young lawyers interested in serving as guardians should look to their local bar associations, courts, and departments of aging to see if there is an established guardianship program for their local jurisdiction. For areas where there is not a formal program, young lawyers can network with attorneys who practice elder law to learn more about opportunities to serve as guardians. Additionally, the American Bar Association’s Commission on Law and Aging maintains a cache of resources and training materials for attorneys interested in volunteering as guardians.