A guardian may be necessary for any individual if they are unable to make necessary decisions for themselves. This could include making decision regarding their health, living arrangements, and finances, just to name a few areas.
The court will appoint a person to become their guardian when the court determines they are incompetent. The court will appoint a guardian who will act in the least restrictive way on the person’s liberty and the exercise of rights that promotes the greatest possible integration of a person into the community that meets their essential requirements for health, safety, habilitation, treatment, and recovery and protecting them from abuse, exploitation, and neglect. The person who has a guardian appointed by the court is called “ward”.
The court may review any advance planning documents to determine an appropriate guardian. This includes health care powers of attorney and financial powers of attorney. Those documents might be a person’s only chance to have a voice in who the guardian will be. In the case of a minor the court will review the parent’s wishes for a guardian in the parent’s Last Will and Testament.
One of the areas the court must determine before appointing a guardian, is if the ward is able to communicate decisions (receiving and evaluating information) in an effective way to meet the requirements for their physical health and safety and manage their property or financial affairs. The court’s determination may not be based merely on old age, eccentricity, poor judgment, or physical disability. The court may appoint a guardian of the person or a guardian of the estate or both.
There are two types of guardians: guardian of the person and guardian of the estate.
Guardian of the person means a person has been appointed by court to make decisions regarding someone’s physical health and safety could include: health treatments, their personal wellbeing, where and who they are living with.
Guardian of the estate means a person has been appointed by the court to make decisions regarding someone’s property and financial affairs.
Even though a guardian has been appointed, an adult person who is incompetent still has certain rights, unless the court removes those rights. Those rights include: marriage, executing a will, serve on a jury, driver’s license, other licenses and permits, own guns, vote, sterilization, and consent to organ, tissue or bone marrow donation.
One misconception is that once a healthcare power of attorney has been activated or a person has a guardian they are unable to sign a new will. Only a court order may take away civil rights.
A Conservator is a little different than a guardian because a conservator is someone who has been appointed as a guardian upon a ward’s request to manage their estate.
On April 16, 2018, Wisconsin was among some of the first few states to enact the “Support Decision Maker” law. The new law allows individuals with disabilities (intellectual, developmental, and physical), mental health conditions, and degenerative diseases or condition that substantially limit one or more major life activities, to create an agreement which allows other trusted individual (“supporters”) to help the individual gather and understand information, options, and communicate their decision to others.
Some of the advantages of a Support Agreement is that the court does not need to be involved so the cost is less; no annual paper work is required to be provided to the court; the individual retains all their rights; the document may be amend, changed, or ended; and there may be several agreements with many supporters involved, instead of only one guardian.
The person who creates the Support Agreement does not give up their rights to make decisions. Instead, the person nominates other individual to help gather information, compare options, and communicate the person’s decisions to others.
By creating a Support Agreement, the person is more independent, more likely to be employed at a higher-paying job, are healthier, better able to avoid and resist abuse, and have more self-determination. This is the least intrusive means for a person who needs help by allowing them to make decisions throughout their life and providing them the tools they need to grow.
Most likely in the future more Support Agreements are going to be used for individuals with a disability rather than powers of attorney and guardianship proceedings. These Support Agreements allow individual to keep their independence, dignity, and civil rights while getting help when they need it.