ABA Family Legal Guide

The Rights of Older Americans

A Right to Control Your Own Affairs

Guardianship

Are there any disadvantages to the appointment of a guardian?

Yes. Although a guardianship may be necessary to protect the welfare of an incapacitated person, it also may result in the loss of individual rights. The person under a guardianship may lose several civil rights: the right to marry, the right to vote, the right to hold a driver's license, the right to make a will, the right to enter into a contract, and other rights. Because of its serious consequences, guardianship should be considered the last resort for helping someone who is experiencing incapacity.

In addition, the court proceedings themselves can be costly, time-consuming, and emotionally trying for a family. Moreover, a guardian has less flexibility in management of the estate than a trustee or an agent under advance-planning legal tools such as durable powers of attorney or living trusts. Guardians must operate within strict fiduciary limitations and normally must file annual accountings with the court. On the positive side, the fiduciary rules and court accountings ensure at least some oversight and accountability of the guardian.