Guardianships can be a useful and positive option for someone needing that type of support. However, there are other options as well, and it is wise to prepare in advance for potential end-of-life issues and emergencies that could lead to the need for assistance with decision-making, said Minot attorney Paul Temanson.
“I would advise people to have a durable power of attorney in place,” he said. “Work with an attorney you are comfortable with or get a good referral from an attorney you are comfortable with.”
He added that power of attorney documents can be obtained at office supply stores or online that don’t require attorney involvement. While the standardized documents may carry more risk, they can work for some people. It also is important to preserve the original document in a safe place but make copies and ensure that others have or know how to obtain the document when necessary, he said. A copy also often can be added to health records kept by a medical provider.
Durable power of attorney has limits and may not allow for certain actions, such as sale of property, Temanson said. That’s when a guardianship may be desirable.
Mark Westereng, Ward County public administrator, has served in a guardianship role in instances where family members or friends aren’t available to perform those duties. The duties can be extensive and time-consuming, he said.
Ward County is one of a handful of counties with a public administrator who can serve at a judge’s direction when other guardian options aren’t available. In smaller counties that don’t have a public administrator, often the duty falls to the county social service agency, Westereng said.
Anyone can petition to place a person under guardianship. Most commonly, family members or medical agencies make requests. A judge will make the determination based on input from family, an appointed social worker who investigates the person’s competency and others, including the person identified for guardianship if able to be present and contribute. State law requires an attorney be appointed for the person for whom guardianship is sought.
“The guardianship is not something entered into lightly. You are taking away a person’s rights. The court does not take that lightly,” Westereng said.
While a guardian can have broad decision-making powers, the North Dakota Department of Human Services guidelines state a guardian should determine a ward’s preferences to the extent possible and choose least restrictive options.
“I work for them,” said Westereng, who sees wards as clients. “I try to do what’s in their best interest based on the information provided to me.”
Families or wards who are unhappy with a guardian have the right to petition the court for a change. A ward believed to have regained competency also can petition to remove a guardianship.
Westereng and Temanson suggest people going through guardianship proceedings work with attorneys with expertise in that area. People can check with the North Dakota Bar Association or North Dakota Legal Services to obtain information.