What Are the Ward's Rights in a Guardianship?

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Entrusted Legacy Law

Posted on

Feb 03, 2023

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Pennsylvania - Greater Pittsburgh Area

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Older people may need a trusted individual to step in and manage their affairs, should they ever suffer debilitating health problems like dementia, Alzheimer’s disease, and strokes. 

Guardianship can provide protection and assistance with certain decisions for an incapacitated individual — known as a “ward” — who may become unable to make decisions or advocate for themselves. In appointing guardians, courts can restrict a ward’s rights in some circumstances. Wards may lose the right to:

  • Vote
  • Decide where to live
  • Provide medical consent
  • Make decisions about whether to prolong their life with medical interventions
  • Have a driver’s license
  • Control, buy, or sell property
  • Possess a firearm or weapon
  • Make contracts

A guardian should make decisions that benefit the ward. Some guardians fail to act in their wards’ best interests, preventing them from seeing family and friends, making unsound healthcare decisions, and neglecting to protect them from harm. 

Although the guardian becomes the primary decision maker, the person under guardianship also retains many essential freedoms. Elders with guardians and their family members should know these rights so that they can respond if control becomes overly restrictive. 

State Laws Governing Guardianships

State laws govern guardianships, and many states have acted to protect the rights of wards. The American Bar Association reported that, since 2015, 18 states have passed laws protecting the rights of people in the custody of guardians, while other states have strengthened their laws. 

Many states have passed versions of a Guardianship or Ward's Bill of Rights, with rights including:

  • Access to an attorney and the power to petition the court for relief
  • Fair treatment
  • The ability to see and communicate with friends, family, community members, and others
  • Respect for the ward’s religious beliefs and wishes
  • Privacy
  • The most significant attainable level of control over their circumstances

Nursing Homes and the Rights of People with Guardians 

Special considerations arise for wards residing in nursing homes. The federal Nursing Home Reform Law governs skilled nursing facilities receiving federal funding and establishes the rights of nursing home residents, including the rights to:

  • Visit with other residents and family members in the establishment

  • Select a physician 

  • Medical privacy

  • Private communications from family 

  • Confidential records

  • Receive accommodations for their needs

  • Express complaints about the home and other residents without retaliation 

  • Engage in social and religious activities

  • Review the results of nursing home surveys done by the Secretary of State

  • Refuse room transfers and moves out of a skilled nursing room 

Whether nursing home residents with legal guardians retain these freedoms or whether these rights transfer to the guardian depends on state law. 

The liberty to visit with family and others and participate in social groups is of particular concern for wards who receive care in skilled nursing facilities, as nursing homes may rely on guardians’ authority to prevent residents from accessing friends and family. 

Petitioning the Court 

Even after a court has ruled a person disabled and assigned a guardian, the person retains the right to petition the court to terminate the guardianship. For example, an individual may recover from illnesses that once rendered them unable to handle their affairs and opt to end the guardianship arrangement. 

What to Do When a Guardian Is Abusive 

Abuse by a guardian is illegal. Those suffering abuse by a guardian and their family should understand their rights and take action to protect themselves or their loved ones. 

  • Nursing home residents who suffer abuse under guardianship may contact their local ombudsman, an official who advocates for people in nursing homes. 

  • Elders who experience abuse may reach out to Adult Protective Services. 

  • Individuals may ask the court to remove the guardian. 

For guidance on guardianship, consult with a qualified elder law attorney in your area.

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Our Firm Prepares You for Life What makes our firm different is that we were built with the needs of growing families in mind. We understand you are BUSY, you are growing, you are planning for a life of prosperity and you value ease, convenience and efficiency. You are raising children, and caring for elderly parents, while also working hard to build your own nest egg for a lifetime of support. You want to know youve made the best decisions for your family and that your plan will work when your loved ones need it most. You want to make sure your minor children would be raised by the people you choose, and never by anyone you wouldnt want, and that your teens and adult children are properly prepared to care for you and what you leave behind.  You want to feel confident that youve made the right choices, and handled everything so that you arent leaving behind a mess, when something happens. That is our focus as well. Weve developed unique systems to give you the same access to a Personal Family Lawyer as was previously only available to the super-wealthy, so you can have the guidance you need to build and maintain a life of prosperity and wealth. And, to keep your family out of court and out of conflict, which is the greatest risk to the people you love and all you have created, even if youve already worked with a traditional lawyer or created documents online. Our Team Is Here for You We encourage communication with our clients. In fact, weve thrown out the time clocks so you never have to be afraid to call with a quick question. Everything we do is billed on a flat-fee basis, agreed to in advance, so there are never any surprises. We have a whole team to serve you. When you call our office to ask your quick question, you wont have to wait hours or days for a phone call back. Youll get your question answered, right away. And, if you need to schedule a more in-depth legal or strategic call with your Personal Family Lawyer, a call will be scheduled when you're both available and ready for the call so we can make the very best use of your time and not waste your time by leaving voicemail after voicemail back and forth. And, we ensure the most important details of your planning are followed through on and your plan continues to work throughout your lifetime. We have a funding coordinator to ensure your assets are owned the right way throughout your lifetime and none of your assets will end up going through a long, expensive court process or being lost to the state because they were missed after your death. Weve created unique membership programs to keep your plan up to date year in and year out as well as give you access to our Trusted Team of Legal Experts for guidance on ANY legal or financial matter. One day you will need a lawyer. I dont know why and I dont know when, but when you do, you will be grateful you can call on us and well be here to advise you or get you out of a jam. We Help You Transfer Your Life and Legacy Lastly, we believe your financial wealth is only a small part of your overall Life and Legacy Planning which is made up of your far more valuable and most often lost upon incapacity or death intellectual, spiritual and human assets. These assets are what make you who you are, and sum up whats most important to you. And, a survey of inheritors has revealed that what they care about even more than inheriting your money, is inheriting these intangible assets.   Most estate plans only focus on the transfer of your financial wealth to the next generation. Most people have such great intentions of passing on the intangible, but very few ever get around to it. Its just not a priority, until its too late. How much do you know about your grandparents values? Their most prized personal possessions? How they felt about you? What they had learned during their lifetime? If you are like most people, you know very little. Thats why we build the capture and passage of these most valuable assets into every estate plan we create. Not only will we help you pass on your money, but also your values, your insights, your stories and your experience the truly valuable assets your loved ones care about the most.  Weve developed a tool that allows us to capture and pass on your whole family wealth, including your Intellectual, Spiritual and Human assets.  I cant go into all of the details here, but well definitely talk about it when you come in for your Life and Legacy Planning Session.