If a loved one has begun to experience a marked decrease in quality of life because of physical or mental deterioration, then creating a guardian for that person may be necessary. This is a touchy subject at best. What family member wants to step in and go through the painful process of having a loved one declared that he or she is unable to take care on their own? This potential loss of liberty is difficult for a love one and difficult for the friend or family member charged with the oversight of the loved one. Let's take a look at some of the basic issues at work here.

Guardianship is generally defined as a process where a court rules an individual incapable of overseeing her own affairs and appoints someone else to manage these affairs. The person ruled incompetent is known as the (ward). The person appointed to manage the ward's affairs is known as a (guardian). There are situations when only a portion of a ward's affairs, such as her finances, is controlled by someone else. This person is known as a (conservator). Often, the terms guardian and conservator are used interchangeably.

Below are some situations when a guardian may be necessary:

1. When incapacity makes it impossible for your love one to oversee own affairs.
2. If harm will come to a person without the court stepping in with its legal authority.
3. If no other care situation exists or an existing situation is failing.

Before You Act

It is important to realize that the process of establishing incompetence in guardianship cases is very involved. Reflect closely on what it is your elder does that concerns you. It may be clear, as in the case of missing several months of bill paying, that your love one needs help. Beyond these typical situations though, it may be unclear whether your love one needs assistance. Is the love one doing something harmful to himself/herself or to others, or is she simply doing something that you disapprove of? All persons have the right to do things that society may deem risky or silly. This does not necessarily mean that they cannot control their own affairs. If you're concerned about your love one’s actions, consult as many trusted sources as you can before you seek guardianship.

Guardians can be granted wide powers by the court or they may be very specific. In most cases, a guardian is required to report back to the court on some sort of a regular basis and may also be overseen by a caseworker. The rules of guardianship will vary greatly from one state to another.

Durable Power of Attorney - An Alternative to Guardianship

One way to potentially avoid the involved and stressful process of establishing a legal guardian is to create a durable power of attorney for health and/or finances. Advanced planning through these instruments will not only be private (unlike guardianship which is open to the public), but will also ensure that your love one dictates the care he or she desires. If a guardianship proceeding is still necessary, the court will decide whether the current agent named in the power of attorney can still continue in the caregiving position based on the love one’s needs.