Can Guardianship Be Shared Among Family Members?

 

Can guardianship be shared among family members? This is a question that family caregivers ask me. My response is that “it depends.” The term for shared guardianship is “co-guardian.” Sharing guardianship among family members can work well or sharing guardianship can be a family’s worst nightmare. Family members wonder what guardianship of an elderly parent really means. 

In my professional career as a guardian, I successfully shared professional guardianship with family members. These situations were like partnerships. They worked out very well because I was proactive in discussing all of the problems and challenges that occur when guardianship is shared so that issues could be avoided.

Just the opposite, I know other professional guardians who refuse to accept co-guardianship cases because of potential disagreements with family members. Shared guardianship, also called co-guardianship, is less common than having a single guardian appointed.

Considerations of Shared Guardianship

There are practical reasons for sharing guardianship within families or with a professional guardian.  When a guardian appointment is necessary, this usually means that a higher level of care is needed because of memory impairment or other health concerns. Care is more complex.

Guardianship is a situation where caregiving responsibilities can be overwhelming because of the number of details to be managed and decisions made. When a family member lacks experience there are times when a recommendation to pair with a professional guardian is made by the court.

In other circumstances, a single family guardian may be appointed, and a requirement for retaining a care manager is made. In these situations, a care manager who has served as a guardian is more beneficial to the family situation.

Reasons Why Shared Guardianship Among Family Member is Difficult

Family disagreements about care for aging parents and loved ones make shared guardianship among family members difficult. Shared guardianship requires a united front for decision making. When family members disagree, care can be stalled until agreement occurs which if care is time sensitive, can negatively affect the health of an aging parent or loved one.

Emotions of family members play a significant role in family members being able to agree and work together. Men and women approach caregiving differently. Family members who are emotional find it difficult to work with family members who rely on logic.

There are also times when quick decisions have to be made. The wrong decision or delay in decision-making can negatively affect the health of a loved one.

Because guardianship is a fiduciary role that professionals consider very seriously, shared guardianship may result in disagreements and harm to the client if decisions are not well thought through. Few professionals want their reputations to be at risk from family members who, in their opinion, may make poor decisions that result in harm to an older adult.

Guardianship Is a Serious Responsibility That Requires Ongoing Effort

Fiduciary relationships, power of attorney and guardian, should be taken very seriously by the individual appointed. Many family members accept the role of having no idea of the responsibility that is involved in serving as a family guardian. According to the Merriam Webster dictionary, the definition of fiduciary is:

“a relationship in which one party places special trust, confidence, and reliance in and is influenced by another who has a fiduciary duty to act for the benefit of the party”

Fiduciary responsibility means that the wishes of the individual for whom the guardian is appointed, called the ward, is primary. It is common for family guardians to place their interests above the individual because of a lack of experience understanding the true role and responsibility of a guardian. Conflict frequently occurs in families where a family guardian is appointed.

There are also times when the guardian must make a decision that is in conflict with the ward. In these situations, a thorough exploration of options is necessary to substantiate the reason for the decision.

The responsibility involved in being a guardian supports the reason why a professional would not agree to share guardianship. The same applies to a professional being a shared power of attorney. Professionals with experience rarely place themselves in these positions because of family concerns.

If you are interested in How to Get Guardianship of a Parent watch this 18-minute on-demand webinar.

The Practicalities of Sharing Guardianship

Most professionals acting in the role of a professional guardian, have years of experience and staff to help manage care. This is similar to sharing guardianship, with the person appointed, directing staff to help and complete tasks related to care.

In complicated family situations, relying on one person in a family to be responsible for all elements of care is not practical. The number and frequency of tasks can quickly take over the life and the time of a family member who works, who has children to care for, and who is appointed the guardian for an aging parent or spouse. Being a guardian with caregiving responsibilities can be exhausting. 

Time involved and frequency and duration of tasks is why sharing guardianship among family members is practical. To make shared guardianship work, the persons sharing guardianship must share the same philosophy about the care of the family member.

In situations where shared family guardianship does not work, the co-guardians disagree about all aspects of care. This disagreement becomes personal, and family relationships are fractured. There are times when families approach the court to have the guardianship letters and order modified.

Let’s take a look at guardianship and national standards of care. This information may help in the decision-making process about shared guardianship among family members or with professionals.

Who Can Be a Guardian?

Almost anyone can be a guardian. Are the results the same from guardian to a guardian or is there a difference—and how might the difference be demonstrated?  Is there a difference in the level of oversight and ultimately the level of care received by the ward depending on the commitment, education, and expertise of the individual acting as a guardian?

Are You Aware of the Responsibilities of a Guardian?

Family guardians accept the role without having a thorough understanding of the responsibilities. The role and responsibilities of being a guardian and a family caregiver are significant. The following questions should be asked.

• Are you aware of the day to day responsibilities and actions of a guardian?
• Are you aware of the importance of documentation to serve as a historical and ongoing record by which to monitor changes in condition?
• Are you aware of the importance of ongoing contact with care partners to ensure that care plans are being implemented?

Guardian is more than a title on a piece of paper—for anyone accepting this role there should be a commitment to a higher standard of care and service and to ongoing personal education.

The Importance of Care Planning

One of the most common areas of questioning and debate in the area of guardianship is the importance of care planning.  Professional guardians have experience with care planning and know what this means. Many family members have no idea what a care plan is and why creating a care plan is necessary in the role of a guardian.

Care planning sets the stage for goals and the identification of care partners and services to support the ward. Care planning also involves monitoring, determining measures of success, and compiling results.

The Importance of Monitoring Ongoing Care

Managing care, coordinating with service providers, and advocating for care is the role of a guardian. Without a plan and an ongoing plan, it is difficult to effectively support the care of a ward (the person for whom a guardian was appointed) especially when there are multiple care providers involved who may not have an accurate recall of events.

Ongoing care planning supports regular and ongoing communication with the care team that may be comprised of care community staff, individual caregivers, physicians, physical or occupational therapists, and others. This type of care team and the communication between care team partners is critical, so that client goals are met and so that care plans are implemented.

Family members who have good communication and social skills are more effective in the role of guardian. The role of guardian benefits from a person who can build and work with a team in a positive manner. Knowing this, there are days when family guardians say that they are tired of being a caregiver. 

Documenting Contact with Care Providers

Documenting contact with care providers is important. Some care providers commit to perform certain aspects of care and fail to follow through resulting in harm to a client.

Others take a particular course of action without seeking approval from the guardian, and a client is medically harmed. Written memos, emails, and verbal communication are ways to ensure that requests are received and carried out in the manner requested.

Guardians with experience repeat the common mantra, “if it’s not documented it didn’t happen.” Documentation saves lives and protects the ward.

Guardians also act in the role of an advocate by informing communities that care is not meeting standards, that a caregiver is not a good match, that a client is not being cared for appropriately. Drop in visits to communities often show surprising findings.

Guardians (Professional and Family) Should Know the Ward’s Condition, and Care Needs Better Than Anyone Else

A story that I commonly tell is one of a ward, who was my client, who lived in a skilled nursing community and had a significant change in condition. The nursing staff wanted to place the ward on hospice because of hallucinations regarding seeing and talking to a dead spouse and the belief that the ward was actively dying.

My years of experience with this ward, including documentation of past changes in condition, indicated that this change in condition was probably due to pneumonia and a urinary tract infection. The staff disagreed with me for nearly an hour and refused to send the ward to the emergency room.

Finally, after great debate the ward was sent to the emergency room and was found—not to be actively dying—but diagnosed with pneumonia and a urinary tract infection. If I had not disagreed with the staff, the ward would have likely died due to the severity of the infection.

A family member in the role of a guardian may not have felt comfortable disagreeing with the care staff and unfortunately their family member would have died. Managing healthcare is a role where experience is beneficial.

Accepting Guardianship is Serious and “Forever”

Individuals accepting the role of the guardian, whether family or professional, should be clear about the significant responsibility involved. Guardianship is a “forever” position. While guardianship can have “successors,” this requires a petition to the court and approval of a successor guardian.

When a guardianship is shared, and the guardians are unable to agree on care, appointing a successor shared guardian also applies. Continuing a guardianship that does not provide care for the ward is not a responsible action.

The best situation for an aging parent or adult who needs a guardian is to make sure that if a single individual is appointed, they are evaluated and confirmed to be the best person for this role. When family guardianship is shared, the same situation applies. Will the two individuals appointed share the responsibility for the benefit of the loved one?

Taking the time to evaluate and choose the right individual or individuals is worth the effort. Changing guardianship is possible but may result in bumps in the road for the care of a loved one. Consider and choose wisely.

© 2019, 2021 Pamela D. Wilson, All Rights Reserved.

Pamela D. Wilson, MS, BS/BA, CG, CSA is a national caregiving expert, advocate, and speaker who solves caregiving problems. Since 1999, she has been a direct service provider as a court-appointed guardian, power of attorney, and care manager. In response to the need for accessible, accurate, reliable, and trustworthy information Pamela offers on-line caregiving support and programming to solve caregiving problems, advance healthcare literacy, and promote self-advocacy. She collaborates with professionals in the areas of estate planning, elder law, and probate, financial planning, and healthcare to raise awareness of and sensitivity to family caregiving and healthcare issues.

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