When an elderly loved one becomes incapacitated, it may become necessary to have a legal guardian appointed to help them manage their affairs. However, the process of getting a legal guardian appointed for an adult can be complicated.
Despite this, it may be your only option, particularly if your loved one did not implement an estate plan containing documents such as a power of attorney before becoming incapacitated.
What is legal guardianship?
Guardianship, also known as conservatorship, gives the appointed guardian the authority to make crucial decisions for the person (known as the ward) over whom they've been appointed.
Legal guardians are court-appointed, and their duties and authority depend on the specifics outlined in the court order appointing them. Guardianship can be given for healthcare decisions, financial decisions, or both.
Courts will appoint a legal guardian for an adult if that adult is incapacitated to the degree that they're unable to make important decisions on their own and no alternatives to guardianship are in place, such as a living trust for financial matters or a healthcare power of attorney for medical decisions.
How to obtain a legal guardian of an adult
Before applying to have a guardian appointed for your elderly loved one, check the laws of the state in which they reside because the process for applying for the appointment of a legal guardian varies from state to state.
The process will likely involve the following steps:
- Petition or application to the court, usually the probate court, for the appointment of a guardian
- Notice sent to the elderly person and their relatives, to inform them that an application has been made
- Hearing to determine whether the elderly person is unable to make crucial decisions for themselves, and also to determine whether the person applying to be appointed guardian is suitable for the role
Depending on state rules and regulations, more steps may be involved in the process, such as an investigation to determine whether legal guardianship is appropriate. Additionally, state rules govern who can apply for a guardian to be appointed.
The process can become more complicated if the elderly person or a family member or friend objects to the application. The court will need to hear evidence from both sides to determine whether a guardian should be appointed and whether the person seeking appointment as a guardian is the right person to hold that role.
And because guardianship or conservatorship takes away some or all of the legal rights of the ward, courts generally view the appointment of a legal guardian as a last resort, so if an alternative is available—such as a properly executed power of attorney—the court will likely not appoint a guardian.
Qualifications of a legal guardian
Who may be appointed a legal guardian or conservator is also governed by state laws, and, again, different states have different requirements. Most states require guardians to be of the age of majority, and many will disqualify an applicant if they have a criminal record. And, of course, a legal guardian must not be incapacitated themselves, to the extent that they can't take on the responsibilities of guardianship.
Duties of a guardian for the elderly
A legal guardian's duties vary depending on the authority conferred by the court in appointing the guardian. For example, the court may appoint a guardian solely to manage the elderly person's financial matters or appoint a guardian to look after the elderly person's healthcare decisions.
Typical duties of a legal guardian for an elderly person may include:
- Determining where the elderly person will live
- Making decisions about the person's healthcare
- Implementing a financial budget to take care of daily expenses
- Arranging for in-home care or meal-delivery services
The guardian's duties may be further limited by the court order making the appointment, so the actual duties of any guardianship will vary. For example, the guardian may have to obtain court approval if they feel their ward should be moved to an assisted living facility. It's important to understand what the court order appointing the guardian permits and what it restricts.
The process of getting a guardian appointed for an elderly loved one can be both difficult and expensive, particularly if the elderly person or their relatives object to such an appointment.
Because of the complications that may arise, it's often advisable to consult an attorney experienced in guardianship matters if you feel a guardian needs to be appointed for your elderly loved one.
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