With time, as our parents age, we identify a role reversal happening in the family dynamics. We take on their role as parents ensuring that they are taking their medication in time and going to their doctor appointments. On the other side, our parents move on to take the roles of adolescents, often hiding healthcare information from us, or conveniently forgetting basic information about their finances.
When an elder loses their ability to think clearly, it also affects the ability to make rational and clear-headed decisions. This may sometimes occur due to ailments like Alzheimer’s disease or other kinds of dementia, mental illnesses, brain injury, or other serious issues. If you find the person that you are caring for is not able to make informed and meaningful decisions about their health care, finances, or other aspects of their daily lives, seeking legal guardianship may turn out to be necessary to ensure that they are leading a safe and quality life.
So What Exactly is Guardianship?
In situations where an individual has not appointed a power of attorney for finances or healthcare and is incapacitated due to old age, illness, or disability, guardianship is an option that can be considered. The terminology varies between states. In some states, guardianship can provide control on where the ward can live, get medical attention, etc. Conservatorship, on the other hand, provides the person the ability to handle the financial decisions of the ward. This can include paying their bills, managing their investments, and budgeting for their daily needs. However, these terms are sometimes used interchangeably.
Is Guardianship and Power of Attorney the Same Thing?
Although both guardianship and power of attorney are tools that assist someone to act in your stead if you become incapacitated, they are two different things. With a power of attorney, it is you who would decide on who you want to act for you. In the case of a guardianship proceeding, it is the court that chooses who will act as your guardian.
A power of attorney is an estate planning document that permits a person appointed by you to act in your place for financial purposes when and if you ever are incapacitated. You may limit a power of attorney to a very specific transaction or you may also grant complete power to someone over all of your affairs.
Guardianship is a legal relationship between the guardian and the person who is not able to take care of their affairs because of incapacity. The substitute decision-maker is called a guardian, but in some cases, they are also called a conservator. The guardian can be authorized to make legal, financial, and health-related decisions for their ward.
Because guardianship involves a profound loss of dignity and freedom for the ward, state laws require that guardianship should be imposed only when alternatives that are less restrictive have been tried and proven to be completely ineffective.
When is a Guardianship Necessary for the Elderly?
The appointment of a guardian is quite a serious situation. It provides absolute decision making and authority to the guardian. Decisions in such situations need to be made in the best interest of the elderly parent.
A guardian is appointed for an elderly parent who is diagnosed with a cognitive impairment like dementia or Alzheimer’s disease. Some elderly parents reach a life stage where they experience overwhelming health concerns and are unable to make better decisions about care. Guardianship is an appropriate step in these situations.
Due to cognitive impairment, brain injuries, or other forms of serious health issues, it becomes really difficult for the elderly to evaluate information and make good decisions. It is challenging for hem to interact with healthcare professionals on a regular basis and keep track of inputs provided by them. Adding to this, the challenges posed by poor vision, poor hearing, slower thinking – it all becomes extremely challenging for them.
This is the time when guardianship starts to become important as a consideration for their well being.
When is a Guardian Appointed by the Court?
A guardian or conservator will be appointed by the court only if the court hears evidence that the person lacks the mental capacity to make informed decisions about some or all areas of their lives. IN these situations, the potential ward has the right to appoint an attorney to represent them and the right to object to the appointment of a guardian or a conservator.
If an elderly’s health and/or financial situation is jeopardized, emergency guardianship can be granted right away by the court. however, such cases are quite rare.
Who Can be Appointed as a Guardian?
At the hearing for guardianship, the court decides if the individual who is seeking guardianship is well suited to take this role. In cases where multiple people are seeking responsibilities for the needs of the ward, the court will decide on who is most suitable to take this role. Sometimes the roles can be divided amongst the petitioners. One person is appointed to take care of the ward’s personal and medical decisions, and another is granted the responsibility to handle their financial matters. The preferences set by the ward as well as any legal documents that were prepared prior to their incapacitation ( like a will or an advance directive) are considered while taking decisions on guardianship.
Many states prefer to give guardianship to the ward’s spouse, adult children, or other members of the family considering that they would be more familiar with the individual’s unique needs and abilities. If a friend or relative is unwilling or is unqualified to serve in the role of a guardian, a professional guardian or a public guardian can be appointed by the court.
Can the Elderly Contest the Guardianship Process?
A contested guardianship hearing is when the elderly parent, adult children, or other family members do not agree about the need for guardianship. Disagreements can also be about the proposed guardian.
The contested hearing can have a variety of concerns. These may include parents choosing to appoint a professional guardian as they might believe that the adult child would not be a good choice for the role of a guardian. Adult children can protest the appointment of family members in favor of a professional considering the longstanding relationship issues between them. In situations of family conflict, appointing a professional is sometimes considered to be a better choice.
Contested hearing can sometimes turn out to be a costly affair. Family members opposing the guardianship as well as the elderly parent for whom guardianship is pending- both the parties are supposed to bear the legal expenses for the process.
What are the Responsibilities of a Guardian?
The roles and responsibilities of a guardian are similar to that of a caregiver for the elderly. These responsibilities include the management of daily care in the home or a caring community. The responsibilities of the court-appointed guardian or conservator depend on the extent to which the ward is incapacitated. They may include, but are not limited to-
- Determining the ward’s place of residence- whether the ward can stay in their house or needs to be shifted to a caring community
- Monitoring the ward’s residence and requirements at that location
- Providing consent for medical treatments and working to coordinate the prescription medications with the insurance companies, pharmacy, physician, and a caring community if they are involved.
- Management of in-home caregivers which may involve hiring an in-home care agency and dedicating time to oversee and manage caregivers
- Decisions on how the ward’s finances need to be handled. This would also include decisions on types of financial benefits that the ward might need, and how the assets will be invested further
- Paying and managing bills
- Management of the real estate and other tangible personal property
- Consenting and monitoring the impact of non-medical services like therapy and counseling
- Releasing confidential information related to the ward
- Tracking and keeping a record of all expenditures of the ward
- Making decisions related to end-of-life care for the ward
- Acting as a representative payee
- Annual reporting to the court about their status of guardianship
- Maximizing the independence of the ward in the least restrictive manner
Whenever possible and required, the guardian or conservator must consider seeking inputs of the ward and must act only in those areas that have been authorized by the court. The guardians can be provided with limited authority, as per what the court considers is needed after a thorough investigation of the situation.
As mentioned before, sometimes the court delegates responsibilities to several parties. For instance, a bank trustee might be responsible for overseeing the financial decisions while a family member may handle personal decisions like the ward’s living arrangements. The court will ask for regular reports and details on financial accounting.
Steps to Get Guardianship of an Elderly Parent
There are five steps that you need to take to initiate taking guardianship of your elderly parent.
1. Obtain a Physician’s Certificate or Doctor’s Letter
If you have a parent who you think is in need of guardianship because of health reasons – physical or mental, you will need to obtain a physician’s certificate or doctor’s letter. This form is a statewide document that is filled out by a doctor and attests to the patient’s mental acuity as well as physical abilities.
The elderly patient might be unwilling to meet with the doctor to get these evaluations willingly. You will still need to file the application for guardianship, but as part of the process will also ask the court to order your ward to get the examination. The court can also order your parent to submit to an independent medical exam and if it orders so, will appoint a physical for the determination.
2. File the Application for Guardianship
The procedure of filing the application in a probate court for guardianship is standard. If possible, you should get the medical examination done before you file the application. However, if the elderly refuse for the examination, then you can always ask the court to order a medical exam for them later. The filing of an application does not make you a guardian by default.
The court will go through the standard proceedings related to guardianship to determine whether you are fit enough to be a guardian. Your criminal background, financial responsibilities, or the possibility of any conflict of interest are checked and evaluated.
3. Give Notice to the Proposed Ward and Relatives
When you file the application for guardianship. you need to notify the proposed ward as a mandatory requirement. You will also need to notify any family members or anyone else who possesses the legal right to know about your petition. The family members that need to be notified are laid out in the estate code. However, it also depends on which family members are living and can be easily contacted.
4. Seek a Less Restrictive Alternative to Guardianship
You might want to look at alternatives to guardianship that if put in place are less burdensome. These may include a Power of Attorney or a Medical Power of Attorney. While Power of Attorney grants a person the right to make financial decisions, the Medical Power of Attorney is responsible for all health-related decisions.
These alternate decisions do not involve a court and are less costly than a guardianship. They also provide more control to the elderly over who takes care of them. If you have evaluated these alternatives and have found that they are not really feasible for your situation, then guardianship is the best solution for your loved one.
5. Attorney Ad Litem / Guardian Ad Litem
If you file for guardianship, the court is bound to appoint an attorney to represent your ward. The Attorney Ad Litem represents the proposed ward to do what the ward, their client wants. If the court or the attorney ad litem believes that more investigation might be required, a Guardian Ad Litem may be appointed. This person is not a guardian but a court-appointed person who represents the court in determining the ward’s situation and making recommendations in their best interest.
The first step when you believe that your elderly parent might need something more than emotional or financial support is to identify their needs. Due to a lack of cognitive abilities, they might not be able to make informed and meaningful decisions. However, these issues can be resolved by bringing in short-term solutions like caregivers or even opting for the route for a Power of Attorney.
If you feel that guardianship is the only option that is in the best interests of your parent, it is recommended that you consult an experienced guardianship attorney and understand the whole process from the perspective of your situation. In the end, the well being of your elderly parent is what matters the most.