I have been practicing elder law for twenty-five years. During that time, I have been involved in hundreds (if not thousands) of guardianship actions—helping clients attain guardianship over a loved one or serving as guardian for individuals who do not have family members or whose family members are fighting.

Once a person attains the age of eighteen, the person is legally emancipated, that is, the person is an adult. (As a parent, I realize that saying someone is an adult when he/she attains the age of eighteen is clearly incorrect, the concept is a legal fiction. Studies say our brains do not mature until we are approximately twenty-five years of age.)  As an adult, the person has complete autonomy over themselves and the decisions he makes, unless a court has judged the person as an incapacitated individual.

In other words, if you were the parent of a child who is clearly disabled and unable to handle his own affairs, once that “child” turns eighteen, the parent is no longer able to make decisions for the child (now an adult) unless the parent attains a guardianship over the child.  If Mr. Smith were married to Mrs. Smith for sixty years and Mrs. Smith suffered from Alzheimer’s disease to an extent that she was unable to make decisions for herself, Mr. Smith could not make decisions for his wife of sixty years. Mr. Smith would have to go to court to be appointed the guardian of his wife.

A guardianship is a court action through which one person (the guardian) seeks to declare another person (the ward) as an incapacitated person, a person who can no longer manage her own affairs due to mental or physical incapacity. Guardianships are fairly common court actions.

Once someone is declared incapacitated, the guardian makes all decisions for that person—financial decisions, health care decisions, and residential decisions. The ward no longer makes these decisions for herself, though she can express her preferences as to decision-making affecting her to the guardian.

The guardian is required to hold title to all of the ward’s assets. In other words, if the ward has a bank account at Bank of America titled “Mary Smith,” the guardian must change the title of the account to “Joe Guardian, for Mary Smith,” making it clear that Mary Smith has a guardian and that the guardian is in control of Mrs. Smith’s assets.

If a ward has more than one guardian (in other words, co-guardians), those guardians hold title to the ward’s assets as joint tenants. This means that the co-guardians (or the three guardians or more if there are more than two guardians) must all make the decisions together. This can cause problems.

For instance, assume that Mrs. Smith has two guardians—her husband and her son. Every decision that affects Mrs. Smith must be made by her husband and her son. If Mrs. Smith needs a medical procedure, her husband and her son would have to make the decision to conduct the medical procedure. What if the son where one vacation in another country?

Having co-guardians (two or more guardians) can cause problems. And recently, this fact has been brought to the fore by a movement to appointment co-guardians. Parents of disabled children in particular have mentioned to me the fact that both parents and another one of their children want to be appointed as co-guardians for the disabled child. That means that there are three guardians for the one ward.

The reason families want co-guardians has to do with the potential death of the parents. Obviously, the parents are older than the disabled child. The parents realize that someday, the parents will pass away. The parents want a smooth transition for the disabled child when they pass. If there are co-guardians and one of the guardians (or two of the guardians if there are more than two guardians) pass away, then the remaining guardians or guardian serve without the need to return to court and have a new guardians appointed for the ward. But having more than one guardian can cause issues.

I think there is an argument that co-guardians can serve independently of one another, but this requires asking the court for permission for the guardians to serve independently of one another. The default would be that all the guardians must act together as to every decision affecting the ward.