Premature Probate: A Different Perspective on Guardianship for the Elderly

The management of an individual's property and health is, in large part, left to that person's discretion. The law considers most people competent to make the necessary decisions in these areas. However, for those who lack that competence, largely the elderly,l the law provides for the imposition of surrogate management in the form of guardianship or its equivalent.2 Yet the substitution of a guardian's judgment as to what is best for the ward's health or property creates a grievious potential for abuse. The guardian may make health treatment decisions for the ward which are contrary to the ward's wishes. For example, the guardian may hospitalize the ward for the ward's protection. The hospital