PROCEED WITH CAUTION: Before rushing to appoint a guardian, however, consider the full impact of placing someone under guardianship.

BUILDING YOUR TEAM : CARE ROLES

Terminology here is very state dependent. Some states use the term conservator and guardian interchangeably, others use the term conservator only with regard to assets. It is essential that you speak with local counsel to ensure that your plan uses the right terminology and will comply with state law. That said, the duties are largely the same, even if the local naming conventions differ.

GUARDIANS & CONSERVATORS

If your loved one is under guardianship, consider who will succeed the parent in that role. If they are not under guardianship, should they be? Often parents can avoid dealing with a formal guardianship, because as parents, despite lacking legal infrastructure to make certain decisions, they continue to do so out of practical necessity. This freedom will not exist for non-parent successors, so parents often must consider whether appointing a guardian is right for their loved one.

Before rushing to appoint a guardian, however, consider the full impact of placing someone under guardianship. In the simplest terms, a guardianship makes your loved one a legal child, ward of the guardian, and the guardian is like the parent. Guardians can tell (not ask) the beneficiary where they will live, who they can date, if they can vote, whether they can drive, and will be the intermediary between the trust and the beneficiary. When needed, this can provide a great deal of protection and support for a person with substantially limited capacity. However, this should be a last resort, and only utilized when there is not a less restrictive means of providing the necessary supports and protections.

Depending on local statutes, the role of guardian can be broken into two parts: monetary and personal guardianship.

GUARDIANS OF ASSETS

Sometimes called a Conservator, the Guardian of Assets is responsible only for financial matters, but not personal issues. Thus, they can access bank or investment accounts, pay bills, or file taxes, but they do not make personal decisions.

GUARDIANS OF PERSON

A Guardian of the Person makes all personal decisions on behalf of an incapacitated person. Medical, daily living, personal, romantic, housing decisions, and more, will all be handled by the guardian on behalf of, and critically, in the best interest of the beneficiary, as determined by the guardian's discretion. Again, it is rare that this is the best option, but, if necessary, this can offer substantial protection for an individual who cannot safely make such decisions themselves, even with supported decision making.

SUPPORTED DECISION MAKING (SDM)

More recently, supported decision making teams have become the preferred tool for ensuring that an individual with special needs retains as much control as possible over their own life and decisions, with an infrastructure for guidance and support. In the same way persons without disabilities rely on advisors, such as a financial advisor when planning their retirement, a supported decision-making team can appoint different individuals to roles where they can advise on each type of issue. A member of the SDM may provide medical support, while another focuses on employment. SDM involves documentation and creating a legal infrastructure to support, what in many cases, is already, a natural part of the decisionmaking process. With the SDM infrastructure in place, hospitals, doctors, lawyers, and others who may want to ensure that the person they are working with understands the decisions that are being made, will be less likely to require that a formal guardianship be in place, as the SDM team will be able to show structured support for the decision.