- March 30, 2021
- Steve Heisler
- Senior Injuries
Public guardians are guardians of last resort – that’s the most important thing to understand about them. It all starts when a person is deemed to lack capacity. Legally, the court will determine if that person lacks capacity. If that person has no responsible, willing, or appropriate person to make decisions on their behalf, then that is when a public guardian will take that position. They are like a surrogate decision-makers that the state appoints. Hence the name public guardian. However, different rules will apply depending on where you live. It will generally be a little bit different in each state because of the various statutes. Guardianship is a creature of the courts and various state laws.
Seniors Are At Risk of Public Guardians
Public guardianships mainly occur with seniors and elderly individuals who might be deemed incapacitated. Older adults are more likely to get a public guardian because they often suffer from head injuries, strokes, and dementia. A public guardian will also step in if people have mental illness and can’t make decisions. Sometimes a public guardian will be appointed when people have developmental or intellectual disabilities. More older adults than younger adults tend to be in public guardianship programs across the country. However, if the person has someone who can take care of them, then a public guardian would not be needed.
Changing Your Public Guardian
People can get appointed a public guardian; then another more appropriate person can step up and then assume the role. Usually, a friend or family member will volunteer because they know that individual and their preferences. Depending on the situation, there are ways to add, remove, or change the guardian. If someone wants to take over the duty as guardian, they will need to fill out a Petition for Appointment of Successor/Co-Guardian. To qualify, this person must be at least twenty-one years old. Also, this petition will be necessary when the original guardian can no longer serve due to death, resignation, or removal.
Another option for seniors to have a different guardian is through a co-guardian, also known as a conservator. This person will be appointed as a guardian in addition to the existing guardian. When there are two guardians for one individual, they both have equal authority to act unless otherwise specified by the court. A co-guardian can serve immediately with the original guardian, or the court can appoint a co-guardian to serve when the original guardian is no longer able to serve. Remember, the last thing a senior will want to happen is be appointed a public guardian because, most likely, that person does not have the best intentions in mind for the senior.
The Overall Dangers of Public Guardians
A lot of people don’t even know that public guardians exist. However, it’s something that we need to talk about more, and everyone needs to care about what’s going on in this country. Tons of people are under guardianship in this country, probably more than we even know about because of issues with record-keeping. Sadly, it is a significant loss of civil rights. Some scholars say it can unperson someone, but it is also an essential state function that deserves oversight because of the substantial loss of privileges. When the guardianship is total or plenary – it’s everything. It reduces an adult to the legal status of a child. So that person can longer vote or marry – a serious loss of civil rights.
Overall, you want to try to keep out of the public guardian program if you possibly can. Sadly, the institutions and people who are supposed to assist seniors are taking advantage of them. Guardians hang out and can be found in senior centers, doctors’ offices, clinics, and daycare centers. Unfortunately, they are just waiting for the seniors to need help. Seniors and their families need to think twice when faced with the choice of a public guardian. If you want to learn more about guardianship, we cover it on The Injured Senior Podcast. Listen to the episode with Sam Sugar about The Risks, The Truth, and The Dangers of Probate Guardianships. For other tips and resources, follow The National Injured Senior Law Center on Facebook.