When an elder loses the ability to think clearly, it affects his or her ability to participate meaningfully in decision-making. When the person you are caring for is unable to make rational, clear-headed decisions about health care, finances, or other aspects of life, guardianship may be the next step (particularly if there is disagreement among family members about these issues).
Guardianship is an option when your elderly parent does not have a power of attorney or advanced directive in place.
In order to act as someone's legal guardian, you have to go to court to have the person declared incompetent based on expert findings.
In guardianship cases, also known as conservatorship, a court declares a person incompetent and appoints a guardian. The court transfers the responsibility for managing finances, living arrangements, and medical decisions to the guardian.
This procedure can take some time. If family members disagree about the need for guardianship or who should act as a guardian, this can be a painful, prolonged, and costly process that may leave everyone involved feeling angry, guilty, or both.
What Does Having Guardianship Do?
A guardian has a legal duty to act in the best interests of the individual. A guardian has total control over the person they are appointed to serve. Sadly, it strips your loved one of many legal rights. But it might be the only way you can gain the legal authority to make decisions and carry out many essential tasks that he or she is no longer able to handle, such as managing and protecting finances, or arranging admission to a nursing home. 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, he or she can no longer make decisions. The person alleged to be incapacitated has a right to an attorney and to object to the appointment of his or her guardian or conservator.
When your elderly parent has a guardian or conservator appointed, in legal terms, your parent is called a "ward." When the court appoints a guardian, you may have the following responsibilities:
- Determine where the ward will live
- Monitor the residence
- Provide consent to medical treatments
- Decide how finances are handled, what types of financial benefits the ward needs, and how property will be invested
- Consent to and monitor non-medical services, such as education and counseling
- Release confidential information
- Keep records of all expenditures
- Make end-of-life decisions
- Act as representative payee
- Maximize independence in least restrictive manner
- Report to the court about the 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 doles out responsibilities to several parties. For example, a bank trustee might oversee financial decisions, while more personal ones like living arrangements are left to a family member. Generally, the court requires reports and a financial accounting at regular intervals or whenever important decisions are made.
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