When an elder loses the ability to think clearly, it also affects their ability to make informed and meaningful decisions. This may occur due to the onset of Alzheimer’s disease or other related dementias, stroke, brain injury, mental illness or other serious health issues. If the person you are caring for is unable to make rational, clear-headed decisions about their health care, finances or other aspects of life, seeking legal guardianship may be necessary to ensure their safety and quality of life.
What Is Guardianship?
Guardianship for the elderly is an option in cases where an individual has not appointed a power of attorney for health care or finances and is incapacitated due to advancing age, an illness or a disability. It is important to understand that differences in terminology exist between states. In some states, guardianship gives a person control over where the ward (the incapacitated individual) lives, what health care they receive and how their day-to-day needs are met. Conservatorship, on the other hand, gives a person the ability to handle a ward’s financial decisions, such as paying bills, managing investments and budgeting. Sometimes these terms may be used interchangeably.
To act as someone’s legal guardian or conservator, the individual petitioning for guardianship must go to court to have the ward declared incompetent based on expert findings. If the person is ruled incompetent, then the court transfers the responsibility for managing finances, living arrangements, medical decisions or any combination of these tasks to the petitioner.
This process often takes a good deal of time and money. If family members disagree about the need for guardianship or who should act as a guardian, the process can be especially painful, prolonged and costly.
What Is a Court-Appointed Guardian?
A guardian (or conservator) is a person who has court-ordered authority to handle an incapacitated person’s affairs. Guardians have a fiduciary duty to act in the best interests of the person they are appointed to serve. Sadly, it strips the ward of many rights, but it might be the only way to gain the legal authority to make crucial decisions on their behalf. These tasks can include managing finances, selling property, making health care decisions or arranging admission to a nursing home.
Who Can Be Appointed As a Guardian?
At a hearing, the court decides if the person seeking guardianship is well suited for this role. In cases where more than one person is seeking responsibility for a ward’s needs, the court will decide who is best qualified for the position. Sometimes one person is appointed to handle the ward’s personal and medical decisions, and another is granted responsibility for managing the ward’s financial matters. The ward’s preferences and any legal documents that were prepared prior to their incapacitation (such as a will or advance directive) are factored into this decision when possible.
Many states give preference to the ward’s spouse, adult children or other family members, since they are often most familiar with the person’s unique needs and abilities. If a relative or friend is not willing or qualified to serve in this role, then a professional guardian or public guardian may be appointed.
When Is a Guardian Appointed?
A guardian or conservator can only be appointed if a court hears evidence that the person lacks mental capacity in some or all areas of their life. In other words, they can no longer make informed decisions for themselves. The potential ward has the right to an attorney and the right to object to the appointment of their guardian or conservator.
In rare cases, emergency guardianship may be granted right away if an elder’s health and/or finances are in jeopardy.
What Does a Guardian Do?
Depending on the extent of the ward’s incapacity, court-appointed guardians (or conservators) may have the following responsibilities for the ward:
- Determining where they will live;
- Monitoring their residence;
- Providing consent for medical treatments;
- Deciding how finances are handled, what types of financial benefits are needed, and how assets will be invested;
- Paying bills;
- Managing real estate and other tangible personal property;
- Consenting to and monitoring non-medical services, such as counseling;
- Releasing confidential information;
- Keeping records of all expenditures;
- Making end-of-life care decisions;
- Acting as a representative payee;
- Maximizing their independence in the least restrictive manner; and
- Reporting to the court about their guardianship status at least annually.
Whenever possible, the guardian or conservator must seek the input of the ward and must only act in areas authorized by the court. Guardians can be given limited or broad authority, depending on what a court rules is needed after a thorough investigation. Sometimes the court delegates responsibilities to several parties. For example, a bank trustee might oversee financial decisions while a family member handles personal decisions like living arrangements. Generally, the court requires reports and financial accounting at regular intervals or whenever important decisions are made.
Do Guardians Receive Compensation?
All court-appointed guardians are entitled to reasonable compensation for their services. When a spouse, family member or friend is appointed, they typically do not charge the ward for their services. In cases where a private or public guardian is appointed, these individuals are paid directly from the ward’s estate if they can afford it. In most cases, the compensation amount must be approved by the court, and the guardian must carefully account for all their services, the time these tasks require and any associated out-of-pocket costs.
How to Petition for Guardianship of a Parent
To learn more about the legal process of seeking guardianship or conservatorship in your state, it’s best to consult a lawyer. Use the AgingCare.com Elder Law Attorney Directory to find legal assistance in your area.
Sources: Guardianship and Conservatorship (https://www.naela.org/Web/Consumers_Tab/Consumers_Library/Consumer_Brochures/Elder_Law_and_Special_Needs_Law_Topics/Guardianship_Conservatorship.aspx)