In most states, such as Florida, the person who wants to become a guardian must file a petition asking the court to determine incapacity and appoint a guardian. Guardianship issues are often determined in family or probate court. Call your county court to find out the procedures in your area.
"The guardian is responsible for paying the ward's bills out of the ward's money," Weber says. However, if the ward doesn't have any assets or income, then it becomes an issue. And family members often do end up paying.
"I get a couple calls like this every month," he says. "Unfortunately, there's no guardian police. I can help them become legal guardians, but unless the person is committed to a mental hospital, it's not always possible to force them to start taking their medicine or move to a different house - even if you are legally requiring them to."
"In my experience, there are usually very good reasons that a guardian limits visits from family members," says Weber, who serves as a court-appointed guardian for a mentally disabled man who lives in a community home. Weber recently restricted visits by the man's mother. "She wasn't happy about it, but I did it because she couldn't control his eating behavior and after multiple warnings and efforts to resolve the situation, I finally had to say enough is enough."
Elder abuse does happen. Boyer says people who work as professional guardians are unfairly blamed for most of it, but that it happens among family members more than most people want to believe. If you suspect abuse, report it to your county's adult protective services or the police.
"Appointing a guardian should be the last resort," says attorney Edwin Boyer, with the Florida law firm of Boyer Jackson. Ideally, an adult should make arrangements to take care of his or her medical or financial decisions ahead of time by putting together the required legal documents.
A durable power of attorney for asset management names a person to manage the finances. A durable power of attorney for health care names a person to make medical decisions for someone. A living trust or living will can also do the same. These are considered better alternatives to appointing a guardian because they reflect the person's wishes instead of relying on the court to decide.
There are some charitable organizations that provide these types of services, and professional guardians and attorneys sometimes serve as guardians pro bono. But it remains a problem in many states.
Boyer says Florida currently offers public guardianship only in certain areas of the state, and at least 60,000 at-risk residents need guardianship services but don't have them. These people may be making poor decisions about what they eat, where they go, how they spend their money, whether they should drive or see a doctor, etc.
Guardians don't just watch over adults. A court can appoint a legal guardian for anyone under 18 whose parents can no longer take care of them. If parents abuse their children, become too ill or die, a guardian can be appointed. Sometimes parents voluntarily turn over guardianship if they think it's best for their children.
A guardian doesn't have to be a relative, spouse, friend or lawyer; a guardian can also be an organization or state-run agency. There are also professional guardians, who are paid out of the ward's funds, though the court must approve the arrangement.