When I hear from people who are concerned about a parent who is ill or elderly, I get some common questions. Often, people are wondering what guardianship entails and how you go about getting it. Below are some basic answers to these questions. People are sometimes surprised at how difficult it can be to get guardianship. The one thing to take away from this is that if an elderly or ill person establishes powers of attorney while they are still of sound mind, it can save a lot of time, money and stress later on.
When is it time to seek guardianship of an aging parent?
Guardianship doesn’t become relevant until a person is unable to care for themselves or make decisions for themselves. In other words, not until they are legally considered mentally incompetent. A judge, with the help of experts, will make this determination if you seek guardianship. There are two types of guardianship -- guardianship of financial affairs and guardianship of the person (health care, living arrangements, etc.).
Is it necessary to get guardianship in order to help my parent?
If your parent already has power of attorney in place, that document does essentially the same thing, but with fewer steps (and less cost). If there is no power of attorney in place, then you can’t legally take on financial stuff, such as writing checks to pay bills, and you won’t necessarily be able to make decisions about health care and living situation, or consent to medical treatment.
When it comes to end-of-life decisions, if a parent is not competent to make decisions, their advance directive, or living will, will be consulted if they have one. All the forms I mentioned here (powers of attorney and advance directive) are fairly straightforward.
Do I have to go to court?
Yes, you will have to go to court in order to be appointed guardian. A judge will decide if guardianship is necessary, based on the opinion of experts such as doctors and psychiatrists. Then, the judge will decide whether you are an appropriate guardian. This decision is based on the best interests of your parent. You might be given limited or broad powers, meaning a judge will tell you what you can and cannot do on your parent’s behalf. A guardian must be 18 years old or older, a U.S. citizen, be of sound mind and must not have any felony convictions.
What if my siblings and I disagree about this?
If there is disagreement among family members, the process can drag on. If the parent is deemed incompetent, they have the right to object and be given an attorney to challenge the decision. This, too, can make the process longer. It can be frustrating to jump through all these legal hoops, but guardianship takes away a person’s rights, so the court isn’t going to rush it. They want to make sure it’s necessary, and that the person appointed isn’t going to abuse their power. Once appointed, a guardian has a legal duty to act in the ward’s best interests.
Do I need to hire an attorney?
I usually recommend it, because of all the steps involved and the fact that you have to go in front of a judge and show why you should be appointed guardian. And an attorney is especially useful if you expect your parent or another family member to object.
Again, most attorneys would recommend that a person set up powers of attorney when they are still competent to do so. You don’t necessarily need an attorney for that. But keep in mind that a power of attorney that is signed when a person is incompetent won’t be valid -- being of sound mind is a requirement.
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