Guardianship for elder care

If you have a mother or father who is no longer able to think clearly or to participate in decision-making, it may be time to consider whether it is time to go to court, have the person declared incompetent, and appoint you as their legal guardian.

If the court agrees your parent is not competent, they will appoint you (or another person) as their guardian and transfer the responsibility for managing their finances, arranging their living arrangements, and making their medical decisions to you.

Guardianship is an option when your elderly parent does not have a power of attorney or advanced directive in place.

If there are no other family members who wish to be guardian or everyone is in agreement that you should be appointed the guardian, the process can be simple. If not, it can be a painful, prolonged, and costly.

What responsibilities will you have as guardian of your parent?

If you decide you should be the guardian of your parent and the court agrees, you will be responsible for a variety of decisions. The scope of your responsibilities could be limited, but they generally include the following:

  1. Deciding where your ward should live
  2. Ensuring they are receiving adequate medical care
  3. Consenting to medical treatment
  4. Releasing confidential information
  5. Making end of life decisions
  6. Making financial decisions, including how property should be invested
  7. Keeping records of all expenditures
  8. Acting as their representative payee
  9. Updating the court on the status of your ward each year
  10. Attempting to maximize your ward’s independence

The court may also have the authority to limit your rights and responsibilities. This means your powers over the ward could be broad or limited. They also may decide whether another party, such as a bank trustee, should help with financial decisions. For instance, if the court decides your parent remains capable of taking care of their own physical needs but needs financial help, they may appoint a limited guardianship.

How does the court determine if the parent is incompetent?

The requirements for determining competency vary by jurisdiction, but generally will depend on the ability of the parent to make informed and educated choices, including whether they are to adequately able to care for their own physical needs.

To request guardianship you will have to file your petition with the court. A hearing will then be held to determine if the elderly person is incompetent. If the court determines they are not, they will appoint a guardian. It could take up to three months for the hearing to be scheduled, and the court may decide to appoint a guardian ad litem to review the case and testify about the mental and physical condition of the potential ward. You may also provide testimony about the limitations of your parent.

If guardianship has been awarded but the ward is able to prove their condition has improved, the guardianship agreement can be modified or terminated. For instance, if your parent had a stroke you might be appointed a temporary guardian until they have regained the ability to care for themselves. If you are currently a guardian and wish to terminate your role, you can petition the court to have the guardianship agreement modified.

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