If your elderly parent is unable to care for herself or himself, the court might appoint someone to serve as a guardian or conservator for him or her. The person who is appointed to serve as a guardian or conservator will have specific responsibilities and duties that he or she will owe to your loved one. Elder Care Direction can explain the guardianship process and how you might go about getting guardianship of your loved one.
Reasons why someone might need a guardian
Some older adults become incapacitated and are unable to properly care for themselves. this might include problems with remembering to take medications, maintaining proper hygiene, or managing their finances. In these types of circumstances, the elderly adult’s best interests may be served by having a court appoint a guardian.
Understanding the guardianship process
Each state has its own requirements and procedures for guardianship. In general, the following parties are allowed to petition a court for a guardian to be appointed:
- The older adult
- A domestic partner or spouse of the older adult
- A friend or relative of the older adult
- A local or state government agency
The process of guardianship can be complex because the elderly person will have his or her care entrusted to someone else and will lose important rights. There are a number of general steps that may occur in the guardianship process.
To start the process, a person or entity may file a petition for the appointment of a guardian or conservator. This document will contain information about the elderly adult, the person who is filing the document, the relatives of the elderly adult, and the reasons why the petitioner believes that guardianship is required. The petitioner will also be required to include reasons why alternatives are unavailable or are inappropriate.
After the petition has been filed, the elderly person and his or her relatives must receive notice of the guardianship petition. A court-appointed investigator will then investigate to determine whether a guardianship is appropriate.
The court will hold a hearing during which the judge will review the petition and take testimony. The other parties may challenge the petition. The court will determine whether or not the elderly adult is unable to care for herself or himself and whether the petition should be granted.
What are the duties of a guardian?
Guardians owe a duty of care to the elderly people who are their responsibility. This means that a guardian must place the elderly person’s interests first. A guardian may have numerous responsibilities. He or she may decide where the elderly adult might live, how the elderly person can be kept safe and healthy, how the budget for the elderly person should be created, and how the elderly person may have social contact and access to recreation. A guardian may be responsible for making all of the important decisions for the elderly person under his or her charge. This might include making financial and medical decisions, among others.
What are the pros and cons of guardianship for elderly adults?
The reason for the guardianship of elderly adults is to ensure that an older person who cannot care for himself or herself will receive appropriate care. While this can be beneficial, there are also some drawbacks to guardianship.
Filing a guardianship petition and going through the process can be expensive. There are many forms that must be completed and procedural requirements that must be met. In most cases, there will be multiple court hearings. If anyone objects to the guardianship, the process can become emotionally and financially challenging.
By its nature, guardianship will require the elderly person to give up his or her rights. The elderly person may no longer have the right to manage his or her own finances or to choose his or her own caregiver. He or she may also lose the right to choose where he or she might live. A risk exists that the appointed guardian will fail to act in the elderly person’s best interests.
What are some alternatives to guardianship?
Guardianship is considered by the courts to be a last resort because of the potential drawbacks. There are several possible alternatives to guardianship that you might want to explore first.
Your elderly loved one can create a living trust and designate someone to serve as the trustee to manage his or her finances. If the elderly adult’s income comes from governmental benefits, he or she may designate a representative payee to manage the income. An older adult may also draft a financial power of attorney and a medical power of attorney while he or she still has the capacity to create these documents. Powers of attorney become effective if an elderly adult becomes incapacitated and give the legal authority to the agent to make financial or medical decisions on behalf of the older person.
Some states allow elderly people to designate someone as a standby guardian. This person will step into the role in the event that the elderly person is no longer able to properly care for himself or herself.
In all of these alternatives to guardianship, it is necessary that the elderly adult willingly assigns his or her rights to someone else. If the older adult is mentally incapacitated, these alternatives will be unavailable.
The importance of getting help
If your elderly loved one still has the necessary mental capacity, it may be a good idea for him or her to choose an alternative to guardianship in the event that he or she becomes incapacitated in the future. Guardianships of the elderly are complicated and can cause multiple consequences. If your loved one has already lost his or her capacity, you may have to move forward with the guardianship process. The professionals at Elder Care Direction can help you to understand all of the alternatives to guardianship and guardianship itself. If you need legal help with the guardianship process, we can refer you to one of our trusted partner attorneys. Contact us today to learn more.
