Answer: This is a question of State law, and the answer will vary from State to State. Accordingly, you need to consult an Elder Care lawyer in your home State for a definitive answer to your question. However, I can give you some general information about how guardians are appointed.
A guardian is a person appointed by a court to make personal decisions for an incapacitated person, who, once a guardian is appointed for him or her, is typically called a ward. The kinds of decisions that a guardian can make for a ward include such things as where the ward will live, who will be the ward’s treating physician, and whether a suggested medical treatment will be administered to the ward. Qualification for appointment as a guardian is often based on family relationship. The law of many States sets out a system of priority for appointment, usually starting with the incapacitated person’s spouse, then his or her adult children, then parents, then siblings, then other adult relatives or caregivers. Individuals who fall in the same level of priority have equal priority for appointment, which sometimes becomes fertile ground for conflict between family members.
The law of many States also allows a person who is competent to nominate his or her choice of who will serve as guardian if the person ever loses capacity. That nominee usually has top priority for appointment as guardian. This is a very important point because it enables a person to get around the default system of priority set out in the law in order for the person’s specific wishes to be carried out as to who will serve as the person’s guardian. Thus, for example, an unmarried widow can nominate one of her children as guardian in preference over all of her other children. It is not a bad idea for each of us to go ahead and nominate our guardians in accordance with the laws of our respective home States so that our choices will be known and honored if any of us ever becomes incapacitated and needs to have a guardian appointed. As a general rule, the way you nominate your guardian is to state your wishes in a written document. Depending on where you live, your nomination may be incorporated in a durable power of attorney, or it may be made in a standalone nomination document.
Another thing that many States allow is the appointment of successive guardians, or even standby guardians. Appointment of successive guardians would be, for example, appointment of an incapacitated person’s husband for as long as the husband was willing and able to serve, to be followed in the office of guardian by one or more of the incapacitated person’s children. A standby guardian could be appointed where, for example, a person has given her husband a durable medical power of attorney and does not need a guardian at the current time, but would need a guardian if the husband ever stopped being able to serve. Another example of where a court might appoint a standby guardian is where a person is aware that he is losing the capacity to make decisions for himself, and he petitions the court to appoint the person who will step in as guardian when he does finally lose capacity. Again, these are matters of State law, and only an Elder Care lawyer from your home State can give you advice about how to handle a guardianship for a loved one.
Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
Honolulu, Hawaii 96813