Act Before the Need for a Guardianship

By, Nicole Salvatore, Elder & Disability Law Clinic Student, Spring 2022

In recent years, there have been concerns over the restrictive nature of guardianships.[1]  Guardianships are put into place by court orders.[2] In these orders, the court appoints someone to make decisions for people who no longer have the capacity to do so themselves; these decisions often include housing, healthcare, and other related decisions.[3] Guardianship orders are intended to be the least restrictive means possible, and are only supposed to be put in effect if necessary for the protection of the incapacitated person.[4]

There are a series of protections for the incapacitated person during guardianship proceedings, such as attorney representation, challenging evidence, presenting own evidence, and appealing the order.[5] Unfortunately, even with these protections in place, there are errors, and individuals who are capable of making their own decisions are sometimes deemed incapacitated and appointed a guardian by the court.[6]

The New York Times wrote an article about a guardianship that should not have been ordered.[7] In that case, a woman, Phyllis Funke, a 77 year old woman, was deemed incapacitated after Adult Protective Services conducted a wellness check on her.[8] Her guardian ended up being a man she did not trust to take care of her or have her best interests in mind; she believed he was just after her money.[9] Ms. Funke spent years trying to get her rights back.[10]

What happened to Ms. Funke is extremely disappointing; no one should lose rights, nor the ability to make decisions for themselves unless it is thoughtfully determined to be absolutely necessary. Protections to the potentially incapacitated person largely depends on the state in which the proceedings occur. For example, in Virginia, Ms. Funke would have received a Guardian Ad Litem.[11] A Guardian Ad Litem is an attorney that is appointed to represent the best interests of the potentially incapacitated person, including meeting individually with them.[12]

While Ms. Funke’s story is frightening, there are alternatives to guardianships and ways to protect oneself before a guardianship order may be needed. Planning for the future is one way to ensure that one’s best interests are supported.[13] This method of planning includes putting trusted people in charge of decisions, prior to the need for someone else to intervene.[14] Specifically, an effective plan could include enacting a Power of Attorney, Healthcare Power of Attorney, and a Living Will:[15]

  • Power of Attorney – This document appoints a person to make the financial decisions if one is no longer able to do so on one’s own.[16]
  • Healthcare Power of Attorney – This document appoints a person to be in charge of making healthcare and treatment decisions if one is to become incapacitated.[17]
  • Living Will – This document describes what, how, and when certain life-sustaining treatment, such as ventilators, should be used.[18]

Generally, all of the documents described above dictate how one wishes to be treated, and by whom, if one is no longer able to make decisions for oneself; further, it ensures that the people entrusted to make those decisions are ones who are trusted by the person appointing them and will, hopefully, work hard to protect the best interests of the appointer.[19]

Making a plan before getting sick or becoming incapacitated enables a person to decide who, how, and when to make important, and potentially life-altering decisions. It also allows a person to decide what those decisions are, thereby preserving autonomy even after potential incapacitation. There should be more protections for people, like Ms. Funke, who are wrongly deemed incapacitated; one way to protect oneself early on is by setting up a plan.

[1] See John Leland, ‘I’m Petitioning . . . for the Return of My Life,’ N.Y. Times (Dec. 7, 2018),

[2] Elder Justice Initiative, Guardianship, United States Dep’t of Just.,

[3] See id.

[4] See id.

[5] Elder Justice Initiative, Guardianship: Key Concepts and Resources, United States Dep’t of Just.,

[6] See John Leland, ‘I’m Petitioning . . . for the Return of My Life,’ N.Y. Times (Dec. 7, 2018),

[7] See id.

[8] See id.

[9] See id.

[10] See id. The article indicated she was still working on regaining her rights after years of trying.

[11] Virginia Poverty Law Center, Adult Guardianship and Conservatorship, Va. Legal Aid (last updated May 02, 2012),,or%20conservator%20for%20that%20person.

[12] See id.

[13] See Guardianship, N.C. Jud. Branch,,self%2C%20family%2C%20or%20property; Elder Justice Initiative, Less Restrictive Options, Dep’t of Just.,

[14] N.C. Jud. Branch, supra note 14; Less Restrictive Options, supra note 14.

[15] N.C. Jud. Branch, supra note 14; Less Restrictive Options, supra note 14.

[16] Less Restrictive Options, supra note 14.

[17] See id.

[18] See id.

[19] N.C. Jud. Branch, supra note 14; Less Restrictive Options, supra note 14.