In Elder Law News

Adult woman smiles at her senior father who is under her guardianship.Often an aging parent will lose their ability to think clearly or make informed decisions about their life. This may occur because of dementia, mental illness, stroke, brain injury, or other severe health or disability conditions. Your parent may or may not have prepared for their elder years with a durable financial and medical power of attorney. If not, a guardianship may be necessary to protect their best interests.

When There Is No Durable Power of Attorney

If your parent did not prepare for a loss of capacity and the need for legally recognized help, you will not be allowed to create these documents once they are already mentally impaired. With that moment lost, claiming the guardianship of an elderly parent is a process that requires court approval. This ensures that the protections moving forward represent the best interest of the aging adult.

Medical Requirements for Guardianship

When a parent does not have an estate plan with powers of attorney, they may bristle at the mere mention of requiring a guardian. Your first step is to obtain a doctor’s letter or physician’s certificate attesting to your parent’s physical abilities and mental acuities.

Suppose you meet with resistance to having your parent willingly submit to an evaluation. In that case, you may still apply for guardianship with the court. This may then compel your parent to submit to a court-ordered independent medical examination.

When Is it Time to Step in and File to Be a Legal Guardian?

Over time, you may begin to recognize certain signs that having a guardian may be necessary for your older parent. This might include lapses in bill payments, lack of healthy foods in their home, or your parent’s insistence they can drive after a series of accidents. Driving is imperative to monitor because your parent endangers not just themselves but others. Additional signs it may be time for guardianship include self-isolation, hearing or sight loss, and general forgetfulness, which can lead to injury around stoves, stairs, and other risks.

To file for guardianship, you would apply with the clerk of the superior court; this is a fairly standard procedure. However, by state, there are nuances and differences in law and process.

If possible, have your parent undergo a medical examination before applying; if not, the court can order one later. The court will begin legal guardianship proceedings to determine whether you are fit to be their guardian. This process generally involves assessing any existing conflict of interest, financial responsibility, and even a criminal background check.

Notifying Your Parent and Family of the Proceedings

With the application on file and awaiting court approval, you must notify your parent, the proposed ward, of the application. This notification is a legal requirement and can sometimes create family conflict.

A parent’s frantic contact with other family members upon receiving the guardianship documentation is not uncommon. Notifying these family members or others with a right to know is not only a legal requirement but also best discussed before filing. Having family on board to protect your parent with guardianship is best when you mutually agree.

Your Parent’s Right to Representation

The court will appoint an attorney ad litem to represent your parent. This person will legally advocate on your parent’s behalf, representing their needs. The court may also appoint a guardian ad litem, who may not necessarily be a lawyer, to represent the interests of a parent who may be unable to care for themselves.

Typically, court hearings occur between 15 and 30 days from the respondent (your parent) being provided the filing for guardianship. It may take longer if the court requests a multidisciplinary evaluation. In this instance, the clerk of the court may appoint an interim guardian whose powers include addressing the respondent’s immediate needs.

A Multidisciplinary Evaluation (MDE)

A thorough evaluation may include medical, psychological, daily life skills, education, social work, and vocational rehabilitation needs of your parent, the respondent. With an aging parent, the focus tends to remain on medical, psychological, and daily life skill assessments.

After a full assessment of your parent’s unique situation and your application to become a guardian, the court will decide based on the best interests of your parent. Your parent may pursue a process to appeal the decision. They generally must file this in writing within 10 days of the court’s decision. The appeal will prompt a new hearing before a superior court judge.

Guardianship Laws Vary By State

When applying for guardianship, it is crucial to understand the state laws where you live. Different states use different terms.

Some states require a “guardian” to control your parent’s home environment, health care, and day-to-day needs. In other states, a “conservator” makes financial decisions, such as paying bills and budgeting. Still others will use either of these terms to mean the same thing.

The process can take substantial time and money, particularly if family members disagree. Many states give preference to the ward’s spouse, adult children, and other family members, as they know the aging parent and their needs the best.

The court may also appoint a professional guardian. All guardians appointed by the court are entitled to reasonable compensation, although family members or friends typically will not charge for the service. Compensation for guardians must have court approval.

If the court determines you will serve as your parent’s legal guardian, it will state this in a written court order. You will remain their guardian until:

  • your parent dies,
  • the court finds your parent has regained capacity,
  • you die, or
  • the court finds it is in the ward’s best interest to remove you as the guardian or conservator.

Your parent may need your help because of advanced age, a disability, or an illness. However, they may have not appointed a durable power of attorney for health care or finances. Becoming their guardian may be the best option. This will give you the authority to make decisions about medical care, finances, or other needs on their behalf.

Contact your elder law attorney to establish guardianship for your aging parent. They can guide you through applying to become a guardian or conservator. They also can help manage your expectations regarding the best care for your parent.

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